Khouanmany v. United States Marshals et al

Filing 186

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 7/12/2022 GRANTING defendants' 184 motion to modify the scheduling order. Their motion for summary judgment is due 30 days from this order's entry . Plaintiff's opposition, if any, to that motion is due 21 days after service of defendants' motion. Defendants' reply shall be due 14 days after service of plaintiff's opposition. IT IS RECOMMENDED that plaintiff's 183 motion for summary judgment be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VILAYCHITH KHOUANMANY,
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ORDER THAT DEFENDANTS’ MOTION
TO MODIFY THE SCHEDULING ORDER
BE GRANTED

Plaintiff,
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v.
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BEN ALENCASTRE and KEVIN
DEPPE,
Defendants.

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Case No. 2:17-cv-01326-TLN-JDP (PC)

ECF No. 184
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT BE DENIED

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ECF No. 183

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff is a federal prisoner bringing claims under Bivens v. Six Unknown Named Agents,

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403 U.S. 388 (1971). She alleges that defendants violated her constitutional rights when they

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sexually assaulted her during two searches of her person. Pending before the court are plaintiff’s

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motion for summary judgment and defendants’ motion to modify the scheduling order. I

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recommend that the former be denied, and I order that the second be granted.
Plaintiff’s Motion for Summary Judgment

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I.

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Summary judgment is appropriate where there is “no genuine dispute as to any material

Legal Standards

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

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Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

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only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

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while a fact is material if it “might affect the outcome of the suit under the governing law.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818

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F.2d 1422, 1436 (9th Cir. 1987).

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Rule 56 allows a court to grant summary adjudication, also known as partial summary

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judgment, when there is no genuine issue of material fact as to a claim or portion of that claim.

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See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

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56 authorizes a summary adjudication that will often fall short of a final determination, even of a

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single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a

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motion for summary judgment and a motion for summary adjudication are the same. See Fed. R.

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Civ. P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

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Each party’s position must be supported by (1) citing to particular portions of materials in
the record, including but not limited to depositions, documents, declarations, or discovery; or

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(2) showing that the materials cited do not establish the presence or absence of a genuine dispute

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or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R.

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Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials in the record

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not cited to by the parties, but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v.

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San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Simmons v.

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Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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“The moving party initially bears the burden of proving the absence of a genuine issue of

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material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

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moving party must either produce evidence negating an essential element of the nonmoving

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party’s claim or defense or show that the nonmoving party does not have enough evidence of an

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essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

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Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

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initial burden, the burden then shifts to the non-moving party “to designate specific facts

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demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

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376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than

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the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material

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issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to

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require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W.
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Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).
The court must apply standards consistent with Rule 56 to determine whether the moving

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party has demonstrated there to be no genuine issue of material fact and that judgment is

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appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

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“[A] court ruling on a motion for summary judgment may not engage in credibility

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determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

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2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

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nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

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Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); accord Addisu v. Fred

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Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

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II.

Analysis

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Plaintiff’s motion for summary judgment should be denied because whether defendants

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violated plaintiff’s Eighth Amendment rights by sexually assaulting her is disputed, see ECF Nos.

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134 & 137, and plaintiff’s motion for summary judgment does not contain evidence showing that

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the truth of her allegations is beyond genuine dispute.
Defendants’ Motion to Modify the Scheduling Order

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Defendants request that the scheduling order be modified to allow them to weigh whether

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the Supreme Court’s recent decision in Egbert v. Boule, ---S.Ct. ----, 2022 WL 2056291 (2022),

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should be applied to this case. They propose that plaintiff’s motion for summary judgment be due

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thirty days after I resolve plaintiff’s motions to compel, ECF Nos. 175 & 179.1 Then, defendants

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will file their opposition and cross-motion for summary judgment twenty-one days after service

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of plaintiff’s motion. Plaintiff has already filed her motion for summary judgment, however, and

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it should be denied. Nevertheless, I will modify the scheduling order to allow defendants

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additional time to file a motion for summary judgment.

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It is ORDERED that Defendants’ motion to modify the scheduling order, ECF No. 184, is
GRANTED. Their motion for summary judgment is due thirty days from this order’s entry.

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A separate order addressing those motions will issue concurrently.
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Plaintiff’s opposition, if any, to that motion is due twenty-one days after service of defendant’s

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motion. Defendant’s reply shall be due fourteen days after service of plaintiff’s opposition.
Further, it is RECOMMENDED that plaintiff’s motion for summary judgment, ECF No.

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183, be DENIED.
These findings and recommendations are 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 fourteen days of

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158

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F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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July 12, 2022
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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