-CMK (PC) Wilson v. Dickinson et al, No. 2:2009cv02667 - Document 39 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/16/11 RECOMMENDING that 24 , 33 plf's Motion for Partial Summary Judgment be denied; that dft's 31 Cross-Motion for Summary Judgment be granted; all other pending motions be denied as moot and the Clerk be directed to enter judgment in favor of the dfts and close file. Objections to these F&Rs due w/i 14 days; referred to Judge Morrison C. England, Jr. (Benson, A.)
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-CMK (PC) Wilson v. Dickinson et al Doc. 39 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENNIE R. WILSON, 12 Plaintiff, 13 14 No. CIV S-09-2667-MCE-CMK-P vs. FINDINGS AND RECOMMENDATIONS N. MERCADO, 15 Defendant. 16 / 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions for “partial summary 19 judgment” (Docs. 24 & 33), and defendant’s cross-motion for summary judgment (Doc. 31). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 1 Dockets.Justia.com 1 I. BACKGROUND 2 3 This action proceeds on plaintiff’s amended complaint, filed as of right, naming Kathleen Dickinson and N. Mercado.1 Plaintiff claims: 4 On 12-27-08 C/O N. MERCADO violated my FEDERAL & STATE CONSTITUTIONAL RIGHTS BY COMMITTING RELIGIOUS DISCRIMINATION and harassment. By verbally assaulting me stating (“FUCK YOU”) (FUCK MUSLIMS) and did I know that all Muslims are a piece of “SHIT” and that he has KILLED (23) Muslim in his Life in the Phillipines, and he will do it again! C/O N. MERCADO continues to harass me by branishing (“HIS BIG JADE BUDDA ON A GOLD CHAIN WITH A JESTER OF DOMINANCE”)! [sic]. 5 6 7 8 9 Plaintiff states that Mercado’s verbal harassment has “caused me to suffer tremendously 10 physically and mentally.” He adds that he has sustained an “unwanted shock to my nerves 11 system. [sic].” He states that he no longer wears religious artifacts and fears openly practicing 12 his religion. 13 14 II. STANDARDS FOR SUMMARY JUDGMENT 15 Summary judgment is appropriate when it is demonstrated that there exists “no 16 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 17 matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 18 . . . always 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. 19 20 21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 22 23 “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 24 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 25 26 1 Dickinson, the prison warden, was dismissed by order issued on July 28, 2010. 2 1 depositions, answers to interrogatories, and admissions on file.’” Id. Indeed, summary judgment 2 should be entered, after adequate time for discovery and upon motion, against a party who fails to 3 make a showing sufficient to establish the existence of an element essential to that party’s case, 4 and on which that party will bear the burden of proof at trial. Id. at 322. “[A] complete failure of 5 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 6 facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 7 whatever is before the district court demonstrates that the standard for entry of summary 8 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 9 If the moving party meets its initial responsibility, the burden then shifts to the 10 opposing party to establish that a genuine issue as to any material fact actually does exist. See 11 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 12 establish the existence of this factual dispute, the opposing party may not rely upon the 13 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 14 form of affidavits, and/or admissible discovery material, in support of its contention that the 15 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 16 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 17 of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 18 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and 19 that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 20 for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 21 In the endeavor to establish the existence of a factual dispute, the opposing party 22 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 23 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 24 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 25 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 26 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 3 1 committee’s note on 1963 amendments). 2 In resolving the summary judgment motion, the court examines the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 4 any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See 5 Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed 6 before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 7 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 8 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 9 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 10 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 11 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 12 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 13 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 14 15 16 III. DISCUSSION This case concerns plaintiff’s allegation that defendant verbally harassed him 17 about his religious beliefs in violation of the Eighth Amendment. The treatment a prisoner 18 receives in prison and the conditions under which the prisoner is confined are subject to scrutiny 19 under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. 20 McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth 21 Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards, 22 humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of 23 confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 24 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, 25 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th 26 Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are 4 1 met: (1) objectively, the official’s act or omission must be so serious such that it results in the 2 denial of the minimal civilized measure of life’s necessities; and (2) subjectively, the prison 3 official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See 4 Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a 5 “sufficiently culpable mind.” See id. 6 Allegations of verbal harassment do not support relief under the Eighth 7 Amendment unless it is shown that the harassment was “calculated to . . . cause [the prisoner] 8 psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also 9 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). 10 In addition, the prisoner must show that the verbal comments were unusually gross, even for a 11 prison setting, and that he was in fact psychologically damaged as a result of the comments. 12 See Keenan, 83 F.3d at 1092. 13 In his cross-motion for summary judgment, defendant argues: (1) there is no 14 evidence that, objectively, Mercado’s statements were sufficiently gross; (2) there is no 15 evidence that Mercado made comments with the intent to cause plaintiff psychological damage; 16 and (3) there is no evidence that plaintiff was actually psychologically harmed. Defendant 17 concludes that, if he can prevail on any of these points, summary judgment should be granted in 18 his favor because plaintiff cannot establish a necessarily element of his claim. 19 As a threshold issue, the court must consider what, if anything, Mercado said to 20 plaintiff on December 27, 2008, and whether anything said was objectively gross considering the 21 prison setting. In his declaration, Mercado denies making any derogatory statements regarding 22 plaintiff’s religion. He also denies making any “gestures of dominance.” These denials, 23 supported by declaration, are sufficient to carry defendant’s initial summary judgment burden of 24 establishing the non-existence of a genuine dispute of a material fact. 25 /// 26 /// 5 1 The court has reviewed plaintiff’s filings, both in support of his motions for 2 summary judgment as well as in opposition to defendant’s motion for summary judgment, and 3 finds that plaintiff has not presented any evidence showing that Mercado made harassing 4 statements regarding plaintiff’s religion on December 27, 2008. While plaintiff submits his 5 various declarations basically reciting the allegations in the complaint, such recitals are 6 insufficient to create a genuine dispute as to a material fact absent more specific evidence. 7 With his second motion for summary judgment, plaintiff submit s the declaration 8 of William Hackney who states that he has known plaintiff all his life. Mr. Hackney, however, 9 offers no statements concerning what, if anything, Mercado said to plaintiff on December 27, 10 2008. Plaintiff also offers the declaration of Teddy James, who states: “I Teddy James was 11 present with Officer Mercado told Bennie Wilson fuck you, fuck Muslims, and did he know all 12 Muslims are a piece of shit.” This declaration is dated March 25, 2011, which is problematic 13 given that, according to defendant’s undisputed evidence, Mr. James died in 2010. Given this 14 discrepancy, the court finds that no rational trier of fact could conclude that the James declaration 15 creates a genuine dispute. 16 As stated above, the “purpose of summary judgment is to ‘pierce the pleadings 17 and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 18 U.S. at 587. In this case, there is a complete lack of proof sufficient to create a genuine dispute 19 as to what, if anything, Mercado said to plaintiff on December 27, 2008. Mercado declares that 20 nothing derogatory or harassing was said. Plaintiff merely denies this statement, but offers no 21 competent proof to support the necessary element of his claim that Mercado in fact made 22 sufficiently gross statements to warrant relief under § 1983. Plaintiff’s best “evidence” is a 23 forged declaration. There is simply no need for a trial to determine what is already clear – 24 plaintiff cannot prove that Mercado said anything of a derogatory or harassing nature on 25 December 27, 2008. 26 /// 6 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Plaintiff’s motions for “partial summary judgment” (Docs. 24 & 33) be 5 2. Defendant’s cross-motion for summary judgment (Doc. 31) be granted; 6 3. All other pending motions be denied as moot; and 7 4. The Clerk of the Court be directed to enter judgment in favor of defendant 4 8 denied; and close this file. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court. Responses to objections shall be filed within 14 days after service of 13 objections. Failure to file objections within the specified time may waive the right to appeal. 14 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 18 19 DATED: August 16, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 7
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