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)

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