Heilman v. Sanchez
Filing
85
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 06/16/16 ORDERING Defendants December 11, 2015, motion for extension of time 59 is granted; Defendants February 17, 2016, motion for summary judgment 64 is de emed timely filed. Plaintiffs March 7, 2016, motion to stay the summary judgment motion or, in the alternative, an extension of time to file an opposition 73 is granted in part. Plaintiff shall file an opposition to defendants motion for summary ju dgment for failure to exhaust administrative remedies within thirty days from the date of this order. As noted, the court will reserve issuing a recommendation on defendants motion for summary judgment at this time insofar as it is based on exhaustio n of administrative remedies. Defendants motion to stay discovery 75 is denied. Also, RECOMMENDING that that defendants motion for summary judgment 64 be denied in part as follows: The motion be denied without prejudice to its renewal as to the F irst Amendment retaliation claim. The motion be denied as to the First Amendment access-to-court claim. The motion be denied on grounds of qualified immunity. Motion for Summary Judgment 64 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M) Modified on 6/16/2016 (Plummer, M).
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
THOMAS HEILMAN,
12
Plaintiff,
13
14
No. 2:10-cv-1120 JAM CKD P (TEMP)
v.
ORDER AND
L. SANCHEZ,
15
FINDINGS & RECOMMENDATIONS
Defendant.
16
17
18
I.
Introduction and Procedural History
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
19
action pursuant to 42 U.S.C. § 1983. This matter proceeds on a retaliation claim against defendant
20
L. Sanchez.
21
Plaintiff initiated this action on January 26, 2010, in the Solano County Superior Court.
22
(See Notice of Removal, ECF No. 1.) The case was removed to the Northern District of
23
California under 28 U.S.C. § 1441(b) on April 23, 2010, and transferred to this court on May 6,
24
2010. (ECF Nos. 1, 7.) On November 9, 2010, the then-assigned magistrate judge dismissed
25
plaintiff’s complaint with leave to amend for failure to state a claim. (ECF No. 11.) Plaintiff then
26
filed a first amended complaint (ECF No. 14), which was dismissed without leave to amend on
27
November 22, 2011, for failure to state a claim. (ECF Nos. 20, 22.) Judgment was entered
28
accordingly.
1
1
Following plaintiff’s timely appeal to the Ninth Circuit Court of Appeals, the decision of
2
this court was reversed in part on July 28, 2014, and the matter was remanded for further
3
proceedings.1 Heilman v. Sanchez, 583 Fed. Appx. 837 (9th Cir. June 13, 2014) (ECF No. 36).
4
Specifically, the Ninth Circuit affirmed the dismissal of all claims but for plaintiff’s retaliation
5
claim against defendant Sanchez based on the latter’s threats of disciplinary action if plaintiff
6
accessed the prison’s grievance system and his carrying out of these threats by removing plaintiff
7
from the library and placing false allegations in his file.
On remand, and following denial of plaintiff’s motion to file a supplemental pleading
8
9
(ECF Nos. 40, 50), defendant was ordered to file a responsive pleading. On December 11, 2015,
10
defendant filed a motion for extension of time to file a responsive pleading (ECF No. 59), and
11
then on February 17, 2016, he filed a motion for summary judgment (ECF No. 64). Less than one
12
month later, defendant filed an answer (ECF No. 74), and a motion to stay discovery (ECF No.
13
75). These motions are considered herein, as is plaintiff’s motion to stay the summary judgment
14
motion or, in the alternative, an extension of time to file an opposition. (ECF No. 73.)
15
II.
Plaintiff’s Allegations
16
In the December 22, 2010, first amended complaint (“FAC”), plaintiff alleges as follows2:
17
At all times relevant to this action, plaintiff was an inmate housed at California Medical
18
Facility (“CMF”) in Vacaville, California. Defendant Sanchez was a Junior Librarian.
19
Incident One: On November 11, 2007, defendant became angry with plaintiff for seeking
20
copies of legal documents. Defendant made “implied” verbal threats against plaintiff should the
21
latter file a grievance against defendant concerning this incident. From November 11, 2007, to
22
July 6, 2008, defendant continued to make “implied” threats. At some time during this period,
23
plaintiff filed an inmate grievance regarding defendant’s conduct.
Incident Two: On July 6, 2008, defendant denied plaintiff copies of plaintiff’s inmate trust
24
25
account statements and in forma pauperis forms. FAC ¶ 18. In retaliation for plaintiff’s earlier
26
27
28
1
The mandate was issued on August 20, 2014. (ECF No. 37.)
In light of the Ninth Circuit’s order, the court includes only those allegations that were found to
state a retaliation claim against defendant Sanchez.
2
2
1
grievance, defendant filed two identical 128-A counseling chronos in plaintiff’s central file
2
concerning this July 2008 incident. FAC ¶ 20. Plaintiff became aware of the chronos in late-
3
November 2008 and subsequently filed another grievance against defendant. In October 2009,
4
plaintiff filed a complaint against defendant in the Solano County Superior Court.
5
Incident Three: On May 4, 2009, defendant ordered plaintiff removed from the law library
6
in handcuffs. FAC ¶ 31. Defendant accused plaintiff of accessing the library without
7
authorization, but plaintiff claims that he had a ducat pass to enter. This incident was in retaliation
8
for plaintiff’s earlier grievances.
9
Incident Four: On April 27, 2010, defendant excluded plaintiff from the law library. FAC
10
¶ 33. Defendant falsely activated his emergency staff alarm, telling plaintiff, “I got you now!”
11
This incident was in retaliation for plaintiff’s earlier grievances.
Plaintiff seeks damages and the removal of the aforementioned chronos from plaintiff’s
12
13
central file.
14
III.
Legal Standards
15
Summary judgment is appropriate when the moving party “shows that there is no genuine
16
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
17
Civ. P. 56(a).
18
Under summary judgment practice, “[t]he moving party initially bears the burden of
19
proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d
20
376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving
21
party may accomplish this by “citing to particular parts of materials in the record, including
22
depositions, documents, electronically stored information, affidavits or declarations, stipulations
23
(including those made for purposes of the motion only), admission, interrogatory answers, or
24
other materials” or by showing that such materials “do not establish the absence or presence of a
25
genuine dispute, or that the adverse party cannot produce admissible evidence to support the
26
fact.” Fed. R. Civ. P. 56(c)(1). “Where the non-moving party bears the burden of proof at trial,
27
the moving party need only prove that there is an absence of evidence to support the non-moving
28
party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R.
3
1
Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, “after adequate time for
2
discovery and upon motion, against a party who fails to make a showing sufficient to establish the
3
existence of an element essential to that party’s case, and on which that party will bear the burden
4
of proof at trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an
5
essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
6
Id. at 323. Summary judgment should be granted, “so long as whatever is before the district court
7
demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.
8
9
If the moving party meets its initial responsibility, the burden then shifts to the opposing
party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
10
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the
11
existence of this factual dispute, the opposing party may not rely upon the allegations or denials
12
of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or
13
admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P.
14
56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in
15
contention is material, i.e., a fact “that might affect the outcome of the suit under the governing
16
law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific
17
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e.,
18
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party,”
19
Anderson, 447 U.S. at 248.
20
In the endeavor to establish the existence of a factual dispute, the opposing party need not
21
establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed
22
factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the
23
truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co.,
24
391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the pleadings
25
and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475
26
U.S. at 587 (citation and internal quotation marks omitted).
27
28
“In evaluating the evidence to determine whether there is a genuine issue of fact, [the
court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls
4
1
v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is
2
the opposing party’s obligation to produce a factual predicate from which the inference may be
3
drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to
4
demonstrate a genuine issue, the opposing party “must do more than simply show that there is
5
some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations
6
omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the
7
non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391
8
U.S. at 289).
9
IV.
10
Discussion
Defendant moves for summary judgment on the grounds that (1) plaintiff cannot
11
demonstrate that any of the acts underlying his First Amendment retaliation claim were retaliatory
12
in nature or that they chilled plaintiff’s First Amendment rights, (2) plaintiff cannot state a First
13
Amendment access-to-court claim, (3) plaintiff failed to exhaust his administrative remedies as to
14
the May 4, 2009, incident, and (4) defendant is entitled to qualified immunity.
15
A.
First Amendment Retaliation Claim
16
A viable First Amendment claim for retaliation must establish the following five
17
elements: “(1) An assertion that a state actor took some adverse action against an inmate (2)
18
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
19
exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
20
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
21
Defendant moves for summary judgment on plaintiff’s retaliation claim on the ground that
22
plaintiff cannot support essential elements of this claim, including (a) that the July 6, 2008,
23
chrono issued by defendant was not clearly justified or disciplinary, (b) plaintiff’s exclusion from
24
the library on two occasions did not reasonably advance a legitimate correctional goal, and (c)
25
plaintiff’s exercise of his First Amendment rights was chilled by defendant’s conduct. These
26
arguments are based on defendant’s characterization of the events, including that plaintiff was
27
disruptive on July 6, 2008, which led to the issuance of the counseling chrono; that plaintiff was
28
not scheduled to access the law library on May 4, 2009, or April 27, 2010; and that plaintiff filed
5
1
numerous grievances and lawsuits notwithstanding defendant’s conduct.
2
In his motion to stay the summary judgment motion pursuant to Federal Rule of Civil
3
Procedure “56(f)” or, in the alternative, an extension of time to file an opposition, plaintiff argues
4
that defendant’s motion is premature since a Discovery and Scheduling Order has not yet issued
5
in this case. Plaintiff seeks an opportunity to conduct discovery and collect evidence necessary to
6
oppose defendant’s motion, including internal investigation reports of complaints against
7
defendant, evidence of similar baseless disciplinary notices filed in other inmates’ prison central
8
files by defendant, declarations from other inmates to rebut defendant’s claim that plaintiff was
9
disruptive; and official CDCR logs regarding actual access to and permission to access the law
10
library.
The court construes plaintiff’s Rule “56(f)” motion as one for relief pursuant to Federal
11
12
Rule of Civil Procedure 56(d).3 Under that rule, a party opposing a motion for summary judgment
13
to request an order deferring the time to respond to the motion and permitting that party to
14
conduct additional discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d)
15
(requiring party making such request to show “by affidavit or declaration that, for specified
16
reasons, it cannot present facts essential to justify its opposition.”). A Rule 56(d) affidavit must
17
identify “the specific facts that further discovery would reveal, and explain why those facts would
18
preclude summary judgment.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100
19
(9th Cir. 2006). On such a showing, “the court may: (1) defer considering the motion or deny it;
20
(2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
21
appropriate order.” Fed. R. Civ. P. 56(d).
22
“Though the conduct of discovery is generally left to a district court’s discretion,
23
summary judgment is disfavored where relevant evidence remains to be discovered, particularly
24
in cases involving confined pro se plaintiffs. Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir.
25
1988). Thus, summary judgment in the face of requests for additional discovery is appropriate
26
3
27
28
Federal Rule of Civil Procedure 56(f) does not provide the relief that plaintiff seeks. Rather, it
grants the court authority to enter judgment independent of the motion for a nonmovant, on
grounds not raised by a party, or to consider summary judgment on its own after identifying for
the parties material facts that may be genuinely in dispute.
6
1
only where such discovery would be “fruitless” with respect to the proof of a viable claim.” Jones
2
v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). “The burden is on the nonmoving party, however, to
3
show what material facts would be discovered that would preclude summary judgment.”
4
Klingele, 849 F.2d at 412; see also Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995) (“The
5
burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show
6
that the evidence sought exists.”). Moreover, “‘[t]he district court does not abuse its discretion by
7
denying further discovery if the movant has failed diligently to pursue discovery in the past.’”
8
Conkle, at 914 (quoting California Union Ins. Co. v. American Diversified Sav. Bank, 914 F.2d
9
1271, 1278 (9th Cir. 1990).
10
The court finds that plaintiff has met his burden under Rule 56(d) and concludes that it
11
would be virtually impossible for plaintiff to properly oppose defendant’s motion for summary
12
judgment on the First Amendment retaliation claim without the benefit of conducting discovery.
13
Therefore, the undersigned will grant plaintiff’s Rule 56(d) motion and will recommend that
14
defendant’s motion for summary judgment on plaintiff’s retaliation claim be denied without
15
prejudice to its renewal at a later time.
16
B.
First Amendment Access-to-Court Claim
17
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,
18
518 U.S. 343, 346 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). The right of access
19
to the courts is merely the right to bring to court a grievance the inmate wishes to present, and is
20
limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at
21
354. To bring a claim, the plaintiff must have suffered an actual injury by being shut out of court.
22
Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at
23
655.
24
Defendant next moves for summary judgment on a First Amendment access-to-court
25
claim because plaintiff cannot demonstrate that he suffered “actual injury” as a result of
26
defendant’s conduct. There is, however, no access-to-court claim remaining in this action since
27
the Ninth Circuit determined that the only viable claim is plaintiff’s retaliation claim. See
28
Heilman v. Sanchez, 583 Fed. Appx. at 839 (reversing the court’s dismissal order only on
7
1
2
3
4
plaintiff’s retaliation claim). Defendant is thus not entitled to summary judgment on this ground.
C.
Exhaustion of Administrative Remedies
1.
Legal Standards
Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
5
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
6
confined in any jail, prison, or other correctional facility until such administrative remedies as are
7
available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement applies to
8
all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks
9
omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth
10
v. Churner, 532 U.S. 731, 741 (2001), and unexhausted claims may not be brought to court, Jones
11
v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).
12
The failure to exhaust is an affirmative defense, and the defendants bear the burden of
13
raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d
14
1162, 1166 (9th Cir. 2012) (en banc). “In the rare event that a failure to exhaust is clear from the
15
face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747
16
F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust,
17
and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed
18
in the light most favorable to the plaintiff, shows he failed to exhaust. Id.
19
The defendant bears the burden of proof in moving for summary judgment for failure to
20
exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available
21
administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172.
22
If the defendant carries his burden, the burden of production shifts to the plaintiff “to come
23
forward with evidence showing that there is something in his particular case that made the
24
existing and generally available administrative remedies effectively unavailable to him.” Id. This
25
requires the plaintiff to “show more than the mere existence of a scintilla of evidence.” In re
26
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson v. Liberty Lobby,
27
Inc., 477 U.S. 242, 252 (1986)). “If the undisputed evidence viewed in the light most favorable to
28
the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule
8
1
56.” Albino, 747 F.3d at 1166. However, “[i]f material facts are disputed, summary judgment
2
should be denied, and the district judge rather than a jury should determine the facts.” Id.
3
2.
Analysis
4
Defendant submits evidence that plaintiff failed to exhaust his administrative remedies
5
concerning defendant’s allegedly improper removal of plaintiff from the law library on May 4,
6
2009. Plaintiff has not responded to this argument and has not presented any reason to delay
7
ruling on this portion of defendant’s motion. Accordingly, plaintiff will be directed to file an
8
opposition addressing defendant’s exhaustion argument within thirty days from the date of this
9
order. The court reserves issuing a recommendation on this issue until the matter has been fully
10
11
12
13
briefed.
D.
Qualified Immunity
1.
Legal Standards
Government officials are immune from civil damages “unless their conduct violates
14
‘clearly established statutory or constitutional rights of which a reasonable person would have
15
known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457
16
U.S. 800, 818 (1982)). In analyzing a qualified immunity defense, the court must consider the
17
following: (1) whether the alleged facts, taken in the light most favorable to the plaintiff,
18
demonstrate that defendant’s conduct violated a statutory or constitutional right; and (2) whether
19
the right at issue was clearly established at the time of the incident. Saucier v. Katz, 533 U.S. 194,
20
201 (2001) overruled in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling
21
Saucier’s requirement that the two prongs be decided sequentially). These questions may be
22
addressed in the order most appropriate to “the circumstances in the particular case at hand.”
23
Pearson, 555 U.S. at 236. Thus, if a court decides that plaintiff’s allegations do not support a
24
statutory or constitutional violation, “there is no necessity for further inquiries concerning
25
qualified immunity.” Saucier, 533 U.S. at 201. On the other hand, if a court determines that the
26
right at issue was not clearly established at the time of the defendant’s alleged misconduct, the
27
court need not determine whether plaintiff’s allegations support a statutory or constitutional
28
violation. Pearson, 555 U.S. at 236, 242.
9
1
In deciding whether officials are entitled to qualified immunity, the court is to view the
2
evidence in the light most favorable to the plaintiff and take all pleaded allegations as true. Wood
3
v. Moss, ___U.S.___, ___, 134 S. Ct. 2056, 2065 n.5 (2014); Martinez v. Stanford, 323 F.3d
4
1178, 1184 (9th Cir. 2003).
5
6
7
2.
Analysis
a.
Violation of a Constitutional Right
The Ninth Circuit has already held that, taken in the light most favorable to plaintiff, the
8
allegations in the first amended complaint demonstrate that defendant Sanchez violated plaintiff’s
9
First Amendment rights by threatening him with disciplinary action and then carrying out those
10
threats by removing plaintiff from the library and placing false allegations in his file. This prong
11
of the qualified immunity analysis is therefore resolved in plaintiff’s favor.
12
b.
Clearly Established Right
13
As to the second prong, defendant argues that it would not have been clear to a reasonable
14
prison official that his conduct on July 6, 2008 (placing chronos in plaintiff’s personnel file), May
15
4, 2009 (ejecting plaintiff from the law library), or April 27, 2010 (excluding plaintiff from the
16
law library) was unlawful. Defendant does not address his threats spanning the period from
17
November 11, 2007, to July 6, 2008.
18
Again taking the allegations in the light most favorable to plaintiff, the court finds that
19
defendant has not shown entitlement to qualified immunity. This is because a reasonable prison
20
official should have known that retaliating against a prisoner for filing a grievance by threatening
21
him, placing a false chrono in his personnel file, and/or excluding him from a law library absent a
22
legitimate penological interest was unlawful. “Prison officials cannot use a proper and neutral
23
procedure in retaliation for a prisoner’s exercise of his constitutional rights.” Bruce v. Ylst, 351
24
F.3d 1283, 1290 (9th Cir. 2003). “[T]he prohibition against retaliatory punishment is ‘clearly
25
established law’ in the Ninth Circuit, for qualified immunity purposes.” Pratt v. Rowland, 65 F.3d
26
802, 806 (9th Cir. 1995); Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (stressing that a
27
mere threat may be retaliatory “regardless of whether it is carried out”). The undersigned will
28
therefore recommend that defendant’s motion for summary judgment be denied insofar as it is
10
1
based on qualified immunity. In light of this recommendation, defendant’s motion to stay
2
discovery pending resolution of the threshold question of qualified immunity will be denied.
3
V.
Conclusion
4
Based on the foregoing, it is HEREBY ORDERED that:
5
1. Defendant’s December 11, 2015, motion for extension of time (ECF No. 59) is
6
7
8
9
10
granted;
2. Defendant’s February 17, 2016, motion for summary judgment (EC No. 64) is deemed
timely filed;
3. Plaintiff’s March 7, 2016, motion to stay the summary judgment motion or, in the
alternative, an extension of time to file an opposition (ECF No. 73) is granted in part;
11
4. Plaintiff shall file an opposition to defendant’s motion for summary judgment for
12
failure to exhaust administrative remedies within thirty days from the date of this
13
order. As noted, the court will reserve issuing a recommendation on defendant’s
14
motion for summary judgment at this time insofar as it is based on exhaustion of
15
administrative remedies;
16
5. Defendant’s motion to stay discovery (ECF No. 75) is denied; and
17
It is HEREBY RECOMMENDED that defendant’s motion for summary judgment (ECF
18
No. 64) be denied in part as follows:
19
1. The motion be denied without prejudice to its renewal as to the First Amendment
20
retaliation claim;
21
2. The motion be denied as to the First Amendment access-to-court claim; and
22
3. The motion be denied on grounds of qualified immunity.
23
These findings and recommendations are submitted to the United States District Judge
24
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
25
days after being served with the findings and recommendations, any party may file written
26
objections with the Court and serve a copy on all parties. Such a document should be captioned
27
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
28
shall be served and filed within fourteen (14) days after service of the objections. The parties are
11
1
advised that failure to file objections within the specified time may result in the waiver of rights
2
on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan,
3
923 F.2d 1391, 1394 (9th Cir. 1991)).
4
Dated: June 16, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
5
6
7
8
/mb;heil1120.msj
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
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?