Reid v. United States of America et al

Filing 60

FINDINGS and RECOMMENDATIONS to: (1) Grant Plaintiff's Rule 56(d) 54 Motion; and (2) Deny, without Prejudice, Defendant's 52 Motion for Summary Judgment; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 9/10/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 9/28/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GORDON C. REID, 11 12 Plaintiff, v. 13 UNITED STATES OF AMERICA, et al., 14 Defendants. Case No. 1:14-cv-01163-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS TO: (1) GRANT PLAINTIFF’S RULE 56(d) MOTION (ECF NO. 54); AND (2) DENY, WITHOUT PREJUDICE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 52) 15 FOURTEEN (14) DAY OBJECTION DEADLINE 16 17 18 19 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 21 (1971). The action proceeds on Plaintiff‟s First Amendment retaliation claim against 22 Defendant Ontiveroz. 23 On April 3, 2017, Defendant filed a motion for summary judgment. (ECF No. 52.) 24 In response, Plaintiff disputes at least one of Defendant‟s claims and requests that the 25 Court defer consideration of Defendant‟s summary judgment motion pursuant to Federal 26 Rule of Civil Procedure 56(d). (ECF No. 54.) Defendant filed an opposition to Plaintiff‟s 27 request. (ECF No. 57.) 28 1 2 These matters are submitted pursuant to Local Rule 230(l). I. Applicable Law 3 A. 4 The Court shall grant summary judgment if the movant shows that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a 6 matter of law. Fed. R. Civ. P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 7 1216 (9th Cir. 2011). “If undisputed evidence viewed in the light most favorable to the 8 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under 9 Rule 56.” Albino, 747 F.3d at 1166. If material facts are disputed, summary judgment 10 should be denied, and the Court should decide disputed factual questions relevant to 11 exhaustion “in the same manner a judge rather than a jury decides disputed factual 12 questions relevant to jurisdiction and venue.” Id. at 1169-71. Motion for Summary Judgment 13 Each party‟s position, whether it be that a fact is disputed or undisputed, must be 14 supported by (1) citing to particular parts of materials in the record, including but not 15 limited to depositions, documents, declarations, or discovery; or (2) showing that the 16 materials cited do not establish the presence or absence of a genuine dispute or that the 17 opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 18 56(c)(1). In judging the evidence at the summary judgment stage, the Court may not 19 make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty 20 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the 21 light most favorable to the nonmoving party, Comite de Jornaleros de Redondo Beach v. 22 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). 23 B. 24 “Rule 56(d) „provides a device for litigants to avoid summary judgment when they 25 have not had sufficient time to develop affirmative evidence.‟” Atigeo LLC v. Offshore 26 Ltd., 2014 WL 1494062, at *3 (W.D. Wash. Apr. 16, 2014) (quoting United States v. 27 Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)). Federal Rule of Civil Rule 56(d) 28 2 1 Procedure 56(d) permits the Court to delay consideration of a motion for summary 2 judgment to allow parties to obtain discovery to oppose the motion. When a motion for 3 summary judgment is filed “before a party has had any realistic opportunity to pursue 4 discovery relating to its theory of the case,” a Rule 56(d) motion should be freely 5 granted. Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of the Fort 6 Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). 7 A party asserting that discovery is necessary to oppose a motion for summary 8 judgment “shall provide a specification of the particular facts on which discovery is to be 9 had or the issues on which discovery is necessary.” Local Rule 260(b). However, where 10 “no discovery whatsoever has taken place, the party making a Rule 56[(d)] motion 11 cannot be expected to frame its motion with great specificity as to the kind of discovery 12 likely to turn up useful information, as the ground for such specificity has not yet been 13 laid.” Burlington N., 323 F.3d at 774. “The Courts which have denied a Rule 56[(d)] 14 application for lack of sufficient showing to support further discovery appear to have 15 done so where it was clear that the evidence sought was almost certainly nonexistent or 16 was the object of pure speculation.” VISA Int‟l. Serv. Ass‟n v. Bankcard Holders of Am., 17 784 F.2d 1472, 1475 (9th Cir. 1986) (citation omitted). 18 II. Plaintiff’s First Amended Complaint 19 Plaintiff complains of acts that occurred during his incarceration at United States 20 Penitentiary, Atwater. As relevant here, he alleges that an altercation occurred between 21 him and Defendant Ontiveros in Plaintiff‟s cell on April 14, 2013. Several days later, 22 Plaintiff filed an administrative grievance regarding the April 14, 2013 incident. A few 23 days after that, Defendant Ontiveroz told Plaintiff, “So you wanna file paperwork, watch 24 ya back.” 25 On May 1, 2013, Defendant Ontiveroz wrote a false incident report against 26 Plaintiff. As a result of the incident report, Plaintiff was placed in hard restraints for forty- 27 eight h0ours. Plaintiff‟s wrists became swollen and chafed. Plaintiff was unable to eat, 28 3 1 sleep, defecate, urinate, or engage in other hygienic tasks. The use of restraints was not 2 in conformance with policy and regulations. 3 Based on these allegations, the Court has concluded that Plaintiff states a 4 cognizable First Amendment retaliation claim. 5 III. Parties’ Arguments 6 Defendant moves for summary judgment on the ground that the following facts 7 allegedly are undisputed. First, and significantly, Defendant provides a sworn declaration 8 stating that he was unaware that Plaintiff filed a grievance against him. Second, 9 Defendant contends that the May 1, 2013 report that Plaintiff claims was false was, in 10 fact accurate – Plaintiff refused to follow Defendants‟ order requiring him to accept a cell 11 mate. Third, the report was written for a valid penological purpose, i.e., to avoid violence, 12 protect staff, and gain Plaintiff‟s compliance. Fourth, the resulting decision to use 13 restraints was reasonable and served a legitimate penological purpose in light of 14 Plaintiff‟s ongoing defiance. Fifth, the decision to use such restraints was in any event 15 made by other officers, not by Defendant. Lastly, Defendant‟s actions were reasonable 16 and he is entitled to qualified immunity. 17 Plaintiff asks that the Court defer consideration of the summary judgment motion 18 or deny it to allow Plaintiff to conduct discovery. Plaintiff wishes to obtain video footage 19 that he contends will show that (1) Defendant was not present at Plaintiff‟s cell, did not 20 order him to accept a cell mate, and could not have accurately documented Plaintiff‟s 21 refusal; and (2) Plaintiff was not defiant, violent, or agitated and thus there was no need 22 for the use of hard restraints. 23 In response, Defendant provides a sworn declaration from a prison official stating 24 that no such video exists. Defendant also argues that any such video would not be 25 sufficient to defeat summary judgment because Plaintiff cannot show that Defendant was 26 aware of Plaintiff‟s grievance. 27 28 4 1 IV. Analysis 2 A. 3 A Rule 56(d) motion to enable discovery prior to responding to a motion for 4 summary judgment requires “a specification of the particular facts on which discovery is 5 to be had or the issues on which discovery is necessary.” Local Rule 260(b). Here, 6 Plaintiff specifies only that he needs to conduct discovery to gain video evidence to show 7 that Defendant‟s characterization of a May 1, 2013 incident was fabricated. Defendant 8 has provided competent evidence that no such video exists. The Court will not continue 9 an action to enable a party to seek evidence which does not exist. Rule 56(d) Motion 10 However, no discovery has yet been conducted in this case. A party seeking 11 discovery “cannot be expected to frame its motion with great specificity as to the kind of 12 discovery likely to turn up useful information, as the ground for such specificity has not 13 yet been laid.” Burlington N., 323 F.3d at 774. Plaintiff has had no opportunity to conduct 14 discovery into such issues as: (1) whether there ever was a video of his cell at the time 15 in question, (2) if so, what did it show and why was it not preserved, and (3) whether any 16 other documentary evidence may support Plaintiff‟s version of the May 1, 2013 incident. 17 The Court cannot conclude, on the present record, that such evidence is “almost 18 certainly nonexistent or was the object of pure speculation.” VISA Int‟l. Serv. Ass‟n, 784 19 F.2d at 1475. 20 Reason dictates that Plaintiff also be given an opportunity to conduct discovery 21 into what Defendant meant when, according to Plaintiff, he said “So you wanna file 22 paperwork, watch ya back” and whether or not such a statement, if made, reflected 23 knowledge of Plaintiff‟s grievance against Defendant and a threat to retaliate against him 24 for it. 25 Defendant played in instigating the placement of restraints even if the evidence shows 26 he did not make the ultimate decision to place them on Plaintiff. Finally, it is reasonable to allow Plaintiff to conduct discovery into what role 27 28 5 1 Plaintiff cannot be expected to defend against contentions on a motion for 2 summary judgment prior to the advent of discovery. A motion for summary judgment may 3 be brought at any time, but a Rule 56(d) motion should be freely granted when a motion 4 for summary judgment is filed before the parties have had the opportunity to conduct 5 discovery. Burlington, 323 F.3d at 773. Here, no discovery whatsoever has taken place, 6 and Plaintiff therefore does not have the burden of showing, with great specificity, the 7 kind of discovery likely to turn up. Id. at 774. Instead, Plaintiff need only show the 8 particular facts on which discovery is to be had or the issues on which discovery is 9 necessary. He has effectively done so here. 10 B. 11 Even if the Court did not determine that the motion for summary judgment may be 12 denied without prejudice under Rule 56(d), disputes of material fact appear to preclude 13 summary judgment here. Motion for Summary Judgment 14 Defendant contends he was unaware of Plaintiff‟s grievance. However, Plaintiff 15 contends, in his verified complaint, that Defendant stated, “So you wanna file paperwork, 16 watch ya back.” A reasonable juror could credit Defendant‟s version of the facts. 17 However, a reasonable juror alternatively could credit Plaintiff‟s version of the facts and 18 conclude that Defendant was not only aware of the grievance but intended to retaliate 19 against Plaintiff. 20 Furthermore, Defendant contends that his May 1, 2013 report was an accurate 21 description of Plaintiff‟s refusal to accept a cell mate. Plaintiff, however, contends that 22 this did not, and indeed, could not have occurred as Defendant describes. The Court 23 cannot accept Defendant‟s version of the facts merely because it was written in a report. 24 The trier of fact ultimately will be required to resolve this issue. 25 V. Conclusion and Recommendation 26 Based on the foregoing, it is HEREBY RECOMMENDED that: 27 1. Plaintiff‟s Rule 56(d) motion be GRANTED; 28 6 1 2. Defendant‟s motion for summary judgment be DENIED without prejudice; 2 3. Defendant be required to respond to the complaint. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 5 fourteen (14) days after being served with the findings and recommendations, any party 6 may file written objections with the Court and serve a copy on all parties. Such a 7 document should be captioned “Objections to Magistrate Judge‟s Findings and 8 Recommendations.” Any reply to the objections shall be served and filed within fourteen 9 (14) days after service of the objections. The parties are advised that failure to file 10 objections within the specified time may result in the waiver of rights on appeal. 11 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 12 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: September 10, 2017 /s/ 16 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?