(PC) Johnson v. Clays, et al, No. 2:2011cv02881 - Document 134 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/11/2015 DENYING as untimely plaintiff's 120 motion for summary judgment ; DENYING plaintiff's 130 motion to strike; DENYING plaintiff's 131 m otion for leave to file a surreply; and defendants' 125 evidentiary objections insofar as they are relevant to the court's disposition of the pending motion for summary judgment are OVERRULED. IT IS RECOMMENDED that defendants' 110 motion for summary judgment be granted; and this action be closed. Referred to Judge Troy L. Nunley; Objections due within 7 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS REYNALDO JOHNSON, 12 Plaintiff, 13 v. 14 D. CLAYS et al., 15 No. 2:11-cv-2881 TLN DAD P ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 18 42 U.S.C. § 1983. This matter is before the court on a motion for summary judgment brought 19 pursuant to Rule 56 of the Federal Rules of Civil Procedure on behalf of defendants Baker and 20 Speer. Plaintiff has filed an opposition to the motion, and defendants have filed a reply. 21 22 23 24 For the reasons discussed below, the undersigned will recommend that defendants’ motion for summary judgment be granted. BACKGROUND Plaintiff is proceeding on a first amended complaint against correctional officers Baker 25 and Speer. Therein, plaintiff alleges that defendants Baker and Speer conducted a cell search and 26 seized his legal papers and typewriter because plaintiff had previously filed an inmate appeal 27 against defendants’ fellow correctional officer and because he acts as a jailhouse lawyer and has 28 assisted fellow inmates in filing lawsuits against prison staff. (Doc. Nos. 24, 25 & 29) 1 1 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 2 Summary judgment is appropriate when the moving party “shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). 5 Under summary judgment practice, the moving party “initially bears the burden of 6 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 7 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 8 The moving party may accomplish this by “citing to particular parts of materials in the record, 9 including depositions, documents, electronically store information, affidavits or declarations, 10 stipulations (including those made for purposes of the motion only), admission, interrogatory 11 answers, or other materials” or by showing that such materials “do not establish the absence or 12 presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to 13 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 14 When the non-moving party bears the burden of proof at trial, “the moving party need 15 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 16 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed. R. Civ. P. 56(c)(1)(B). 17 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 18 against a party who fails to make a showing sufficient to establish the existence of an element 19 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 20 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 21 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 22 circumstance, summary judgment should be granted, “so long as whatever is before the district 23 court demonstrates that the standard for entry of summary judgment, . . ., is satisfied.” Id. at 323. 24 If the moving party meets its initial responsibility, the burden then shifts to the opposing 25 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 26 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 27 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 28 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 2 1 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 2 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 3 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 4 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 5 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 6 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 7 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 8 In the endeavor to establish the existence of a factual dispute, the opposing party need not 9 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 10 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 11 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 12 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 13 Matsushita, 475 U.S. at 587 (citations omitted). 14 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 15 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 16 party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is 17 the opposing party’s obligation to produce a factual predicate from which the inference may be 18 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 19 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 20 party “must do more than simply show that there is some metaphysical doubt as to the material 21 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 22 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 23 omitted). 24 25 OTHER APPLICABLE LEGAL STANDARDS I. Civil Rights Act Pursuant to 42 U.S.C. § 1983 26 The Civil Rights Act under which this action was filed provides as follows: 27 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the 28 3 1 Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 2 3 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 4 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 5 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 6 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 7 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 8 omits to perform an act which he is legally required to do that causes the deprivation of which 9 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 11 their employees under a theory of respondeat superior and, therefore, when a named defendant 12 holds a supervisorial position, the causal link between him and the claimed constitutional 13 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 14 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 15 concerning the involvement of official personnel in civil rights violations are not sufficient. See 16 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 17 II. The First Amendment and Retaliation 18 Both the initiation of litigation before the court and the filing of inmate appeals are 19 protected conduct, and prison officials may not retaliate against prisoners for engaging in these 20 activities. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir.2005). As the Ninth Circuit has 21 explained: 22 23 24 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 25 26 Rhodes, 408 F.3d at 567–68. See also Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011) 27 (prisoners retain First Amendment rights not inconsistent with their prisoner status or penological 28 objectives, including the right to file inmate appeals and the right to pursue civil rights litigation). 4 1 DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND EVIDENCE 2 Defense counsel has submitted a statement of undisputed facts supported by declarations 3 signed under penalty of perjury by defendants Baker and Speer. That statement of undisputed 4 facts is also supported by citations to plaintiff’s amended complaint, plaintiff’s deposition 5 testimony, a copy of plaintiff’s property card, and copies of the relevant cell search forms. The 6 evidence submitted by the defendants in support of their pending motion for summary judgment 7 establishes the following. 8 1. Plaintiff Johnson is an inmate, incarcerated at Mule Creek State Prison (“MCSP”), 9 alleging that defendants Baker and Speer, who are correctional officers at MCSP, 10 retaliated against him in violation of the First Amendment by searching his cell and 11 seizing his property on May 7, 2010, because plaintiff had filed an inmate appeal against 12 Correctional Officer Clays, and because plaintiff had acted as a jail-house lawyer in 13 assisting other inmates in bringing lawsuits against prison staff. (Pl.’s Am. Compl. at 3, 14 7.) 15 2. In May 2010, cell searches were conducted on a regular basis at MCSP in order to 16 determine whether any illegal activities were occurring inside the cells and whether the 17 inmates were in possession of any items which would be considered contraband. (Baker 18 Decl., Speer Decl.) 19 3. Items of personal property found in a cell which were not owned by an inmate could be 20 considered stolen property and would constitute contraband for this reason. (Baker Decl., 21 Speer Decl.) 22 4. If an inmate’s ownership of a personal property item could not be confirmed at the time of 23 a cell search, the item would then be seized until ownership could be confirmed. If it was 24 confirmed that the inmate did own the item, which did not otherwise constitute 25 contraband, that item would be returned to the inmate. (Baker Decl., Speer Decl.) 26 5. In May 2010, defendants Baker and Speer were correctional officers, assigned to the 27 28 Investigative Services Unit (“ISU”) at MCSP. (Baker Decl., Speer Decl.) ///// 5 1 6. In May 2010, the job duties of defendants Baker and Speer included investigating 2 narcotics trafficking and criminal activity inside the institution and conducting cell 3 searches and property inspections. (Baker Decl., Speer Decl.) 4 5 6 7. In May 2010, defendants Baker and Speer received instructions on which cells to search from their supervisors. (Baker Decl., Speer Decl.) 8. On May 7, 2010, defendants Baker and Speer received instructions from then-Sergeant 7 Hobbs and then-Lieutenant Cantu to search cell 248, which was occupied by plaintiff and 8 his cellmate Aaron, and to seize all paperwork and typewriters found in that cell. (Baker 9 Decl., Speer Decl.) 10 9. Defendants Baker and Speer were not told that the reason for searching plaintiff’s cell was 11 to retaliate against plaintiff for filing a CDCR form 602 Inmate/Parolee Appeal against 12 Officer Clays, because the inmates had complained about prior cell searches, or because 13 plaintiff had acted as a “jailhouse lawyer.” (Baker Decl., Speer Decl.) 14 15 10. Neither defendants Baker nor Speer was aware that plaintiff had submitted a CDCR form 602 Inmate/Parolee Appeal against Officer Clays. (Baker Decl., Speer Decl.) 16 11. While searching plaintiff’s cell, defendants Baker and Speer understood that they were to 17 confiscate any items which might constitute contraband under CDCR policies, as they 18 would when conducting any cell search. (Baker Decl., Speer Decl.) 19 12. On May 7, 2010, defendants Baker and Speer proceeded to cell 248, informed plaintiff 20 and his cellmate that their cell was going to be searched, performed a clothed body search 21 on each inmate, and instructed plaintiff and his cellmate to proceed to the dayroom for 22 their section while the search of their cell was being conducted. (Baker Decl., Speer 23 Decl.) 24 13. Upon searching cell 248, defendants Baker and Speer observed the presence of two 25 Brother brand typewriters, along with miscellaneous paperwork, compact disc diskettes, 26 pornography, inoperable electronic devices and parts, inmate-manufactured lights, and 27 pills not in a container, and confiscated these items. (Baker Decl. & Ex. 1, Speer Decl. & 28 Ex. 1.) 6 1 2 14. Defendants Baker and Speer then delivered the items seized from cell 248 to their supervisors, Hobbs and Cantu. (Baker Decl., Speer Decl.) 3 15. After the cell search was completed and as defendants were carrying the property seized 4 away, plaintiff and his cellmate questioned why the typewriters were being seized when 5 one of them had been recently seized by correctional officers and returned. (Baker Decl.) 6 7 8 9 10 11 12 13 14 15 16. Defendant Baker responded by stating that “everyone has a boss,” because he was acting at the direction of his supervisors. (Baker Decl.) 17. The typewriter which had been seized by Officer Clays and subsequently returned belonged to plaintiff’s cellmate. (Pl.’s Dep. at 102:25-103:2, Pl.’s Am. Compl. Ex. 1 at 12.) 18. During the cell search on May 7, 2010, neither defendants Baker nor Speer referred to plaintiff as a “jailhouse lawyer.” (Pl.’s Dep. at 49:8-50:12.) 19. Plaintiff’s Property Card maintained by CDCR refers to a Cannon brand typewriter but does not refer to a Brother brand typewriter. (Defs.’ Ex. D at 2, Pl.’s Am. Compl. Ex. 1.) 20. When plaintiff’s cell had been searched earlier by Officer Clays on March 25, 2010, 16 Officer Clays found an altered Sony TV with no serial number and security tape which 17 had been removed, an ETRON CD Walkman on which the names of other inmates had 18 been removed and to which plaintiff’s name had been added, and a Cannon brand 19 typewriter which did not belong to plaintiff. (Pl.’s Am. Compl. Ex. 1 at 11.) 20 21. Once it had been confirmed that the typewriters seized on May 7, 2010, were owned by 21 the inmates, the typewriters and paperwork were returned to plaintiff on May 13, 2010. 22 (Baker Decl., Speer Decl.) 23 22. Plaintiff is not asserting a claim for the items which were seized from his cell on May 7, 24 2010, but rather is asserting only a claim for violation of his First Amendment rights. 25 (Pl.’s Dep. at 106:24-107:3.) 26 23. In conducting the search of plaintiff’s cell on May 7, 2010, defendants Baker and Speer 27 intended to comply with orders given to them by their supervisors – to verify that no 28 improper activities were taking place in that cell and that no contraband was present there. 7 1 They did not intend to retaliate against plaintiff. (Baker Decl., Speer Decl.) 2 3 ANALYSIS Based on the undisputed evidence submitted in connection with the pending motion, the 4 undersigned finds that the defendants are entitled to summary judgment in their favor on the 5 merits of plaintiff’s First Amendment retaliation claim. As an initial matter, the undersigned 6 finds that based on the evidence submitted on summary judgment and described above, the 7 defendants have borne their initial burden of demonstrating that there is no genuine issue of 8 material fact with respect to plaintiff’s First Amendment claim. Specifically, the evidence 9 submitted by defendants in support of their motion for summary judgment demonstrates that the 10 defendants did not search plaintiff’s cell or confiscate plaintiff’s property because he had filed an 11 inmate appeal against their fellow officer or because of his jailhouse lawyer activities. See 12 Rhodes, 408 F.3d at 567–68. 13 In light of the evidence submitted by the defendants in support of the pending motion for 14 summary judgment, the burden shifts to plaintiff to establish the existence of a genuine issue of 15 material fact with respect to his retaliation claim. The court has reviewed plaintiff’s amended 16 complaint, his deposition testimony, and his opposition to defendants’ pending motion. On 17 defendants’ motion for summary judgment the court is required to believe plaintiff’s evidence and 18 draw all reasonable inferences from the facts before the court in plaintiff’s favor. Drawing all 19 reasonable inferences in plaintiff’s favor, the court finds that plaintiff has not provided the court 20 with any sufficient evidence suggesting that defendants Baker and Speer searched his cell and 21 confiscated his property because of his protected conduct. 22 As an initial matter, plaintiff has not presented any evidence to show that defendants 23 Baker and Speer were aware that plaintiff had engaged in protected conduct. See Wood v. Yordy, 24 753 F.3d 899, 905 (9th Cir. 2014) (a district court properly granted summary judgment in favor of 25 defendant on plaintiff’s claim that he had been retaliated against by prison officials due to his 26 filing of a lawsuit because there was no evidence presented showing that the defendants knew 27 about prisoner’s earlier lawsuit); Quiroz v. Horel, 85 F. Supp.3d 1115,___, 2015 WL 1485024, at 28 *6 (N.D. Cal. Mar. 31, 2015) (granting summary judgment in favor of defendants on a prisoner 8 1 plaintiff’s retaliation claims for the same reason). Specifically, plaintiff has not come forward 2 with any evidence showing that the defendants even knew he had filed an inmate appeal against 3 their fellow officer, Clays. According to plaintiff’s opposition papers, Sergeant Feltner, Captain 4 Harrington, and Associate Warden Kaplan addressed plaintiff’s inmate appeal involving officer 5 Clays. (Pl.’s Opp’n to Defs.’ Mot. for Summ. J., Ex. A.) Plaintiff does not contend that either of 6 the defendants was involved in addressing that inmate appeal. Nor has plaintiff presented any 7 evidence showing that defendants Baker and Speer knew that plaintiff was a jailhouse lawyer. In 8 fact, plaintiff testified at his deposition that neither defendant had ever referred to him as a 9 “jailhouse lawyer.” (Pl.’s Dep. at 49:8-50:12.) At most, plaintiff merely contends that ISU 10 officers are “acutely aware” that he has assisted other inmates in legal matters against ISU 11 officers. (Pl.’s Decl. at 3.) However, plaintiff does not explain how he knows what ISU officers, 12 and defendants Baker and Speer in particular, know with respect to his jailhouse lawyer activities. 13 See Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir. 2015) (citing Villiarimo v. 14 Aloha Island Air, 281 F.3d 1054, 1059 n. 5, 1061 (9th Cir. 2002) (affirming a grant of summary 15 judgment and concluding that the district court properly disregarded a declaration submitted by 16 plaintiff that included facts beyond the declarant’s personal knowledge and did not indicate how 17 she knew the facts to be true) and F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 18 (9th Cir. 1997) (a conclusory affidavit, lacking detailed facts and supporting evidence, does not 19 create a genuine issue of material fact on summary judgment)); see also Fed. R. Civ. P. 56(c)(4) 20 (“An affidavit or declaration used to support or oppose a motion must be made on personal 21 knowledge, set out facts that would be admissible in evidence, and show that the affiant or 22 declarant is competent to testify on the matters stated.”). 23 Moreover, a viable retaliation claim requires that plaintiff point to some evidence 24 demonstrating causation. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (“To prevail 25 on a retaliation claim, a plaintiff must show that his protected conduct was “the ‘substantial’ or 26 ‘motivating’ factor behind the defendant’s conduct.”). Throughout his opposition to defendants’ 27 motion for summary, plaintiff contends that the defendants seized his personal typewriter and 28 confidential legal documents seven days after prison officials issued a first level of review 9 1 decision on his inmate appeal against Officer Clays, eight days after Officer Clays was required 2 to return his cellmate’s personal typewriter and shaver to him, and thirty-one days after plaintiff 3 had assisted another inmate in the filing of a lawsuit against defendants’ fellow ISU officers. 4 (Pl.’s Decl. at 3, Pl.’s Resp. to Defs.’ SUDF at 13, 16-17, Pl.’s Statement of Facts at 3.) Plaintiff 5 appears to contend that the timing of events shows that defendants Baker and Speer must have 6 been retaliating against him. 7 To be sure, timing can constitute circumstantial evidence of retaliatory motive. See Bruce 8 v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). 9 However, there must be some nexus between the protected conduct and alleged adverse action. 10 See Quiroz, 2015 WL 1485024 at *14. A retaliation claim cannot rest on the logical fallacy of 11 post hoc, ergo propter hoc, literally, “after this, therefore because of this.” See Huskey v. City of 12 San Jose, 204 F.3d 893, 899 (9th Cir. 2000). Here, as noted above, plaintiff has not presented any 13 evidence to the court on summary judgment indicating that the defendants were aware of his 14 engagement in protected conduct let alone evidence that the defendants were substantially 15 motivated by his protected conduct when they searched his cell and confiscated his property. See 16 Brodheim, 584 F.3d at 1271. 17 Finally, at his deposition, plaintiff testified that during the course of the cell search in 18 question, defendant Baker said “Everybody has a boss”, and that defendant Speer said “Let me 19 search him for papers.” (Pl.’s Dep. at 57:24 & 104:8-18.) Allegations that defendants made these 20 vague statements, however, do not indicate that the defendants searched plaintiff’s cell and 21 confiscated his property because he had filed an inmate appeal against their fellow officer and had 22 acted as a jailhouse lawyer in the past. See Wood, 753 F.3d at 905 (district court properly granted 23 summary judgment against plaintiff because there was no indication that prison officials’ 24 “isolated fragments of statements” referred to his protected conduct). In this regard, plaintiff’s 25 contention that defendants’ conduct was retaliatory is purely speculative. It is well established 26 that speculation is not probative evidence indicating the crucial link between plaintiff’s protected 27 conduct and defendants’ alleged adverse actions. Id. (“We have repeatedly held that mere 28 speculation that defendants acted out of retaliation is not sufficient.”) (and citing cases). See also 10 1 Quiroz, 2015 WL 1485024 at *4 (“However, mere speculation that defendants acted out of 2 retaliation is not sufficient.”). Accordingly, for all of the foregoing reasons, the undersigned concludes that defendants’ 3 4 motion for summary judgment with respect to plaintiff’s First Amendment retaliation claims 5 should be granted.1 6 OTHER MATTERS Also pending before the court is plaintiff’s motion for summary judgment filed on August 7 8 3, 2015. Under this court’s discovery and scheduling order, the parties were required to file any 9 pretrial motions on or before December 29, 2014. Plaintiff has not filed a motion to modify the 10 court’s discovery and scheduling order showing good cause for the filing of his motion after the 11 deadline for doing so order the court’s scheduling order. See Johnson v. Mammoth Re-creations, 12 975 F.2d 604, 608 (9th Cir.1992). Accordingly, the court will deny plaintiff’s motion for 13 summary judgment as untimely.2 Plaintiff has also filed a motion to strike a “personal attack” by defendants and a motion to 14 15 file a surreply in support of his motion for summary judgment. Defendants have opposed both 16 motions. First, as to the motion to strike, plaintiff contends that defense counsel mischaracterized 17 one of his contentions to suggest that he assisted another inmate in filing a lawsuit against 18 1 19 In light of the recommendation set forth herein, the undersigned declines to address defendants’ alternative argument that they are entitled to summary judgment in their favor based on the affirmative defense of qualified immunity. 20 2 21 22 23 24 25 26 27 28 The undersigned notes that, in the interest of justice, the court has considered plaintiff’s motion for summary judgment in conjunction with his opposition to defendants’ motion for summary judgment. The court further notes that, even if the court had granted plaintiff leave to act out of time to file his motion for summary judgment, the evidence presented by plaintiff in support of that motion fails to establish beyond dispute that the defendants Baker and Speer retaliated against him in violation of his rights under the First Amendment. Because in this case plaintiff would bear the burden of proof at trial on his retaliation claim, in order to prevail on summary judgment he would need to affirmatively demonstrate that based upon the undisputed facts no reasonable trier of fact could find other than for him. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Here, as discussed above in connection with defendants’ motion for summary judgment, plaintiff’s evidence does not establish that defendants knew of plaintiff’s engagement in protected conduct or that defendants’ search of plaintiff’s cell and seizure of property located therein was substantially motivated by plaintiff’s engagement in protected conduct. 11 1 defendants Baker and Speer when in actuality it appears he assisted another inmate in filing a 2 lawsuit against defendant Baker and Speer’s fellow officers. Defendants contend in their 3 opposition to the motion that their characterization was reasonable based on the way that plaintiff 4 had written the contention at issue and that their characterization of the contention as false was 5 not personal attack on plaintiff himself. After reviewing the record, the court finds that the 6 parties have had a simple misunderstanding regarding an inconsequential fact, and there are no 7 grounds for striking portions of the parties’ briefing or for sanctions. As to plaintiff’s motion to file a surreply in support of his motion for summary judgment, 8 9 as an initial matter, a surreply is not authorized by the Federal Rules of Civil Procedure or the 10 Local Rules of Court. Moreover, as discussed above, plaintiff’s motion for summary judgment 11 will be denied as untimely, so any surreply would be unnecessary. Finally, defendants have filed a series of evidentiary objections to plaintiff’s evidence 12 13 submitted in opposition to their motion for summary judgment. Insofar as defendants’ objections 14 are relevant to the court’s disposition of the pending motion for summary judgment as set forth 15 herein, they are overruled. The undersigned finds it would be an abuse of discretion to refuse to 16 consider evidence offered by a pro se plaintiff at the summary judgment stage. See e.g., Jones v. 17 Blanas, 393 F.3d 918, 935 (9th Cir. 2004) (reversing and remanding with instructions to consider 18 evidence offered by the pro se plaintiff in his objections to the findings and recommendations). 19 In any event, given the recommendation set forth above that defendants’ motion for summary 20 judgment be granted, defendants’ evidentiary objections are unnecessary. 21 CONCLUSION 22 IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion for summary judgment (Doc. No. 120) is denied as untimely; 24 2. Plaintiff’s motion to strike (Doc. No. 130) is denied; 25 3. Plaintiff’s motion for leave to file a surreply (Doc. No. 131) is denied; and 26 4. Defendants’ evidentiary objections (Doc. No. 125) insofar as they are relevant to the 27 court’s disposition of the pending motion for summary judgment are overruled. 28 ///// 12 1 IT IS HEREBY RECOMMENDED that: 2 1. Defendants’ motion for summary judgment (Doc. No. 110) be granted; and 3 2. This action be closed. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days after 6 being served with these findings and recommendations, any party may file written objections with 7 the court and serve a copy on all parties. Such a document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 9 filed and served within seven days after service of the objections. The parties are advised that 10 failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: September 11, 2015 13 14 15 16 DAD:9 john2881.57msj 17 18 19 20 21 22 23 24 25 26 27 28 13
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