(PC) Purtue v. Langhardt et al, No. 1:2015cv00551 - Document 68 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS regarding Plaintiff's Motion that Defendants failed to protect him re 64 signed by Magistrate Judge Stanley A. Boone on 4/5/2017. Referred to Judge Dale A. Drozd; Objections to F&R due by 5/11/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL PURTUE, 12 13 14 15 Plaintiff, v. B. KEARNES, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-00551-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTION THAT DEFENDANTS FAILED TO PROTECT HIM [ECF No. 64] Plaintiff Michael Purtue is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion that Defendants failed to protect him 20 endangering his safety, filed March 23, 2017. From review of Plaintiff’s motion, the Court cannot 21 discern the exact relief Plaintiff is requesting other than a finding that Defendants failed to protect 22 him. Given Plaintiff’s pro se status, the Court will construe Plaintiff’s motion as a motion for 23 summary judgment. For the following reasons, Plaintiff’s motion must be denied. 24 I. 25 RELEVANT HISTORY 26 This action is proceeding against Defendants Rizer, G. Eberle, J. Meyers, J. Emerson, R. 27 Sanchez, J. Chavez, B. Mello, L. Lundy and D. Magallance for deliberate indifference to his safety in 28 violation of the Eighth Amendment, namely, that Defendants have circulated Plaintiff’s trial 1 1 transcripts in an effort to have him labeled as a snitch which may subject him to assault by other 2 inmates. 3 On March 21, 2017, the undersigned issued Findings and Recommendations recommending 4 that Defendants’ motion for summary judgment be granted and the action be dismissed, without 5 prejudice, for failure to exhaust the administrative remedies. 6 II. 7 DISCUSSION 8 Any party may move for summary judgment, and the Court shall grant summary judgment if 9 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 10 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. 11 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed 12 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including 13 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials 14 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot 15 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 16 The Court may consider other materials in the record not cited to by the parties, but it is not required 17 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 18 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 19 In judging the evidence at the summary judgment stage, the Court does not make credibility 20 determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and 21 citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party 22 and determine whether a genuine issue of material fact precludes entry of judgment, Comite de 23 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 (quotation marks and 24 citation omitted). 25 With regard to Plaintiff’s motion for summary judgment, as the party with the burden of 26 persuasion at trial, Plaintiff must establish “beyond controversy every essential element of” his 27 affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (quoting 28 W. Shwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127 (2001)). 2 1 The moving party’s evidence is judged by the same standard of proof applicable at trial. Anderson v. 2 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Plaintiff has failed to meet his burden of proof as the moving party on summary judgment. 3 4 Plaintiff fails to reference the allegations in the operative complaint, and refers only to evidence that 5 he was involved in a fight with another inmate on February 17, 2017-well after this action was filed 6 and after the allegations upon which this action is proceeding took place. Plaintiff, as the moving 7 party, is required to establish every element of his claim, showing that there are no disputed issues of 8 facts. Plaintiff’s motion consists of generalized and irrelevant arguments and complaints about an 9 incident which took place one month ago. Further, Plaintiff has failed to refer to any specific undisputed facts, and has failed to submit a 10 11 separate statement of undisputed facts. Such a statement “shall enumerate discretely each of the 12 specific material facts relied upon in support of the motion and cite the particular portions of any 13 pleading, affidavit, deposition, interrogatory, answer, admission or other document relied upon to 14 establish that fact.” Local Rule 260(a). Accordingly, Plaintiff has failed to meet his burden on 15 summary judgment and his motion must be denied. 16 III. 17 RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for summary 18 19 judgment be denied. 20 This Findings and Recommendation will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 22 being served with this Findings and Recommendation, the parties may file written objections with the 23 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 24 Recommendation.” The parties are advised that failure to file objections within the specified time may 25 /// 26 /// 27 /// 28 /// 3 1 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 2 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 April 5, 2017 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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