Purtue v. Kearnes et al

Filing 68

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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL PURTUE,

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Plaintiff,
v.
B. KEARNES, et al.,
Defendants.

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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.

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Currently before the Court is Plaintiff’s motion that Defendants failed to protect him

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endangering his safety, filed March 23, 2017. From review of Plaintiff’s motion, the Court cannot

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discern the exact relief Plaintiff is requesting other than a finding that Defendants failed to protect

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him. Given Plaintiff’s pro se status, the Court will construe Plaintiff’s motion as a motion for

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summary judgment. For the following reasons, Plaintiff’s motion must be denied.

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I.

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RELEVANT HISTORY

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This action is proceeding against Defendants Rizer, G. Eberle, J. Meyers, J. Emerson, R.

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Sanchez, J. Chavez, B. Mello, L. Lundy and D. Magallance for deliberate indifference to his safety in

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violation of the Eighth Amendment, namely, that Defendants have circulated Plaintiff’s trial
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transcripts in an effort to have him labeled as a snitch which may subject him to assault by other

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inmates.

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On March 21, 2017, the undersigned issued Findings and Recommendations recommending

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that Defendants’ motion for summary judgment be granted and the action be dismissed, without

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prejudice, for failure to exhaust the administrative remedies.

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II.

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DISCUSSION

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.

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U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed

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or undisputed, must be supported by (1) citing to particular parts of materials in the record, including

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but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials

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cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot

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produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).

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The Court may consider other materials in the record not cited to by the parties, but it is not required

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to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031

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(9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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In judging the evidence at the summary judgment stage, the Court does not make credibility

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determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and

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citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party

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and determine whether a genuine issue of material fact precludes entry of judgment, Comite de

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Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 (quotation marks and

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citation omitted).

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With regard to Plaintiff’s motion for summary judgment, as the party with the burden of

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persuasion at trial, Plaintiff must establish “beyond controversy every essential element of” his

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affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (quoting

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W. Shwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127 (2001)).
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The moving party’s evidence is judged by the same standard of proof applicable at trial. Anderson v.

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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.

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Plaintiff fails to reference the allegations in the operative complaint, and refers only to evidence that

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he was involved in a fight with another inmate on February 17, 2017-well after this action was filed

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and after the allegations upon which this action is proceeding took place. Plaintiff, as the moving

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party, is required to establish every element of his claim, showing that there are no disputed issues of

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facts. Plaintiff’s motion consists of generalized and irrelevant arguments and complaints about an

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incident which took place one month ago.
Further, Plaintiff has failed to refer to any specific undisputed facts, and has failed to submit a

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separate statement of undisputed facts. Such a statement “shall enumerate discretely each of the

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specific material facts relied upon in support of the motion and cite the particular portions of any

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pleading, affidavit, deposition, interrogatory, answer, admission or other document relied upon to

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establish that fact.” Local Rule 260(a). Accordingly, Plaintiff has failed to meet his burden on

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summary judgment and his motion must be denied.

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III.

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RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for summary

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judgment be denied.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with this Findings and Recommendation, the parties may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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April 5, 2017
UNITED STATES MAGISTRATE JUDGE

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