Green v. California Department of Corrections and Rehabilitation et al

Filing 45

ORDER by Judge William Alsup granting 40 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 2/12/2013)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 10-5721 WHA (PR) CHANNING GREEN, Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. S. THOMPSON; SERGEANT STOLTENBERG; SERGEANT M. BLOISE; CAPTAIN DONAHUE; LIEUTENANT GARY FULLER; VINCENT S. CULLEN; SERRITENO; CALIFORNIA STATE PRISON, SAN QUENTIN, (Docket No. 40) Defendants. / 16 17 INTRODUCTION 18 Plaintiff, a California prisoner currently incarcerated at California State Prison, Corcoran 19 ("Corcoran"), filed this pro se civil rights action in state court regarding the conditions of his 20 confinement at San Quentin State Prison ("SQSP"). Because the first amended complaint 21 contained federal claims under 42 U.S.C. 1983, defendants S. Thompson, Sergeant Stoltenberg, 22 Sergeant M. Bloise, Captain Donahue, Lieutenant Gary Fuller, Vincent S. Cullen, Serriteno, 23 timely removed the case to federal court. See 28 U.S.C. 1441, 1367. After defendants' motion 24 to dismiss was granted in part, plaintiffs only remaining claim is for declarative, nominal and 25 punitive damages against defendant Thompson for violating his Eighth Amendment rights on 26 June 9,2009. Defendant Thompson has filed a motion for summary judgment, and plaintiff was 27 given the warning about summary judgment motions required by Rand v. Rowland, 154 F.3d 28 952,953-954 (9th Cir. 1998) (en banc). Despite that warning, plaintiff has not opposed 1 defendants' motion. For the reasons discussed below, the motion for summary judgment is 2 GRANTED. ANALYSIS 3 4 5 A. STANDARD OF REVIEW Summary judgment is proper where the pleadings, discovery and affidavits show that 6 there is "no genuine issue as to any material fact and that the moving party is entitled to 7 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect 8 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute 9 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 11 For the Northern District of California United States District Court 10 verdict for the nonmoving party. The moving party for summary judgment bears the initial burden of identifying those 12 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 13 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 14 party has met this burden of production, the nonmoving party must go beyond the pleadings 15 and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine 16 issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue 17 of material fact, the moving party wins. Ibid. 18 B. ANALYSIS 19 The motion for summary judgment is unopposed. A district court may grant an 20 unopposed motion for summary judgment if the movant's papers are themselves sufficient to 21 support the motion and do not on their face reveal a genuine issue of material fact. Henry v. 22 Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993); see Cristobal v. Siegel, 26 F.3d 1488, 23 1494-95 & n.4 (9th Cir. 1994) (unopposed motion may be granted only after court determines 24 that there are no material issues of fact). 25 Plaintiffs remaining claim is that Thompson violated his Eighth Amendment rights by 26 sexually harassing him during a search on June 9,2009. Plaintiff alleges in his amended 27 complaint that Thompson said to him, "I like being fucked in my ass! Do you?" and grabbed 28 plaintiff’s buttocks and testicles (Def. Req. Jud. Not., Ex. B at AGO 013-014). Sexual 2 1 harassment of a prisoner violates the Eighth Amendment prohibition on cruel and unusual 2 punishment if it is egregious, pervasive and/or widespread. See, e.g., Jordan v. Gardner, 986 3 F.2d 1521, 1524-25 (9th Cir. 1993) (en banc). 4 The papers filed in support of the motion for summary judgment show that Thompson 5 was not working at the prison on June 9,2009. Thompson submits a declaration stating as 6 much, and that he did not speak to or touch plaintiff on that day (Thompson Decl. ¶ 4). This 7 declaration is supported by his time sheets showing that he did not work on June 9, and that it 8 was one of his regular days off (id. Exh. A). Plaintiff does not submit evidence in opposition, 9 but because the amended complaint is verified, his allegations about Thompson's words and actions on that day may be considered as opposing evidence. See Schroeder v. McDonald, 55 11 For the Northern District of California United States District Court 10 F.3d 454,460 & nn.10-11 (9th Cir. 1995). The factual dispute over whether Thompson said and 12 did what plaintiff alleged, however, is not a "genuine" factual issue within the meaning of 13 Celotex. The accuracy of the time sheets showing Thompson's absence on June 9, consistent 14 with his regular work schedule is not called into question by any evidence submitted by plaintiff 15 or otherwise in the record. As a result, a fact-finder would not have any reasonable basis to 16 find them, as opposed to Plaintiff’s memory, inaccurate. In any event, the sexual harassment 17 alleged here occurred on between one and three occasions over approximately three weeks; 18 unlike long-term daily harassment or policies that permit sexual harassment, this could not 19 reasonably be found "egregious, pervasive and/or widespread" so as to rise to the level of a 20 constitutional violation. Cf. Jordan, 986 F.2d at 1524-25 (prison policy requiring male guards 21 to conduct body searches on female prisoners); Watson v. Jones, 980 F.2d 1165, 1165-66 (8th 22 Cir. 1992) (correctional officer sexually harassed two inmates on almost daily basis for two 23 months by conducting deliberate examination of genitalia and anus). 24 Because the evidence submitted by Thompson and the papers in the record reveal no 25 genuine issue of material fact in connection with plaintiff’s remaining claim, Thompson is 26 entitled to summary judgment. 27 // 28 // 3 1 CONCLUSION 2 The motion for summary judgment (dkt. 40) is GRANTED. The clerk shall enter 3 4 judgment and close the file. IT IS SO ORDERED. 5 Dated: February 11 , 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\CR.10\GREEN5721.MSJ.wpd 4

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