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