Taylor v. Kuerston

• Decision Date: 08 July 2020
• Docket Number: No. 2: 19-cv-0450 TLN KJN P,2: 19-cv-0450 TLN KJN P
• Citation: Taylor v. Kuerston, No. 2: 19-cv-0450 TLN KJN P (E.D. Cal. Jul 08, 2020)
• Parties: KENNETH LEE TAYLOR, Plaintiff, v. KUERSTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

KENNETH LEE TAYLOR, Plaintiff, v. KUERSTON, et al., Defendants.

No. 2: 19-cv-0450 TLN KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 8, 2020

FINDINGS AND RECOMMENDATIONS

I.Introduction

Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant to 42 U.S.C. § 1983.This action proceeds on the original complaint against defendants Medina and Chavez.Plaintiff alleges that defendants used excessive force against him on June 27, 2017.Plaintiff also alleges that defendant Medina retaliated against him on June 27, 2017, for plaintiff's legal activities.

Pending before the court is defendants' summary judgment motion.(ECF No. 60.)This action proceeds on plaintiff's third opposition filed April 16, 2020.(ECF No. 69.)On June 19, 2020, defendants filed a reply.(ECF No. 75.)

For the reasons stated herein, the undersigned recommends that defendants' motion be granted in part and denied in part.

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II.Plaintiff's Third Opposition and Defendants' Reply

A.Plaintiff's Third Opposition

As discussed above, this action proceeds on plaintiff's third opposition to defendants' summary judgment motion.The undersigned granted plaintiff leave to file a second opposition after finding that the original opposition was not properly supported.(ECF No. 52.)The undersigned granted defendants' motion to strikeplaintiff's second opposition.(ECF No. 67.)

Defendants moved to strike the third opposition in its entirety because it cited new evidence and failed to set forth how all of the evidence cited in the third opposition responded to defendants' statement of undisputed facts.The undersigned denied defendants' motion to strikeplaintiff's third opposition in its entirety, but granted the motion to strike three new pieces of evidence cited in the third opposition that were not cited in the original opposition, (i.e., (1) Allen deposition at 44: 18-19(cited to dispute defendants' undisputed fact no. 52);(2) Medina deposition at 11(cited to dispute defendants' undisputed fact no. 55); and (3) Allen deposition at 49: 13-15(cited to dispute defendants' undisputed fact no. 77.)(SeeECF Nos. ECF Nos. 72, 74.)

As discussed herein, in the third opposition, plaintiff fails to identify any evidence in support of several of his disputes with defendants' undisputed facts.The undersigned observes that the court cannot consider plaintiff's complaint as evidence in support of his opposition because it is signed by plaintiff's counsel and not plaintiff.

An attorney may submit a declaration as evidence to a motion for summary judgment.However, the declaration must be made upon personal knowledge and sets forth fact that would admissible in evidence if the attorney were testifying at trial.SeeFed.R.Civ.P. 56(e).A "hearsay assertion that would not be admissible if testified to at trial is not competent material for a Rule 56 affidavit."See, e.g., Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160(2nd Cir.1999).An affidavit shall "be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."Fed.R.Civ.P. 56.

Clark v. County of Tulare, 755 F.Supp.2d 1075, 1083(E.D. Cal.Nov. 17, 2010);seealsoKelley v. Eli Lilly and Co.517 F.Supp.2d 99, 104(D.C.Apr. 27, 2007)("Since the complaint in this case has only been signed by the attorney for the plaintiff and not the plaintiff herself, avermentsmade in the complaint shall not be considered evidence in this motion for summary judgment.")

B.Defendants' Reply

Defendants attached new evidence to the reply to plaintiff's third opposition.For example, defendants submitted a declaration by defendant Medina in support of the reply.(SeeECFNo. 75-3.)

This court has discretion to consider new evidence offered by defendants in the reply brief.SeeProvenz v. Miller, 102 F.3d 1478, 1483(9th Cir.1996)("We agree with the Seventh Circuit, which held that "[w]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond.")(citingBlack v. TIC Inv. Corp., 900 F.2d 112, 116(7th Cir.1990)).

Rather than granting plaintiff leave to file a sur-reply in order to respond to the new evidence attached to defendants' reply, the undersigned exercises his discretion not to consider this new evidence.Therefore, in evaluating defendants' summary judgment motion, the undersigned considers only the evidence cited by defendants in the summary judgment motion.

III.Summary Judgment Standards

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met."The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986)(quoting then-numbered Fed. R. Civ. P. 56(c)).

"Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case."Nursing Home Pension Fund, Local 144 v. Oracle Corp.(In re Oracle Corp. Sec. Litig.), 627 F.3d 376,387(9th Cir.2010)(citingCelotex Corp., 477 U.S. at 325);see alsoFed. R. Civ. P. 56 advisory committee's notes to 2010amendments(recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.Celotex Corp., 477 U.S. at 322."[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Id. at 323.

Consequently, 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 exists.SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986).In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists.SeeFed. R. Civ. P. 56(c);Matsushita, 475 U.S. at 586 n.11.The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, seeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986);T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630(9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, seeWool v. Tandem Computers, Inc., 818 F.2d 1433, 1436(9th Cir.1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575(9th Cir.1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor.It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."T.W. Elec. Serv., 809 F.2d at 630.Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'"Matsushita, 475 U.S. at 587(quotingFed. R. Civ. P. 56(e) advisory committee's note on 1963amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.Fed. R. Civ. P. 56(c).The evidence of the opposing party is to be believed.SeeAnderson, 477 U.S. at 255.All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.SeeMatsushita, 475 U.S. at 587.Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn.SeeRichards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45(E.D. Cal.1985), aff'd, 810 F.2d 898, 902(9th Cir.1987).Finally, to demonstrate a genuine issue, the opposing party"must do more than simply show that there is some metaphysical doubt as to the material facts. . . .Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'"Matsushita, 475 U.S. at 586(citation omitted).

IV.Plaintiff's Allegations

This action proceeds on the original complaint.(ECF No. 1.)Plaintiff alleges that he is well known for suing correctional officers.(Id. at 6.)Plaintiff alleges that on January 15, 2016, he filed a lawsuit against correctional officers, including M. Medina(Case 3:16-cv-0266 VC).¹(Id.)

Plaintiff alleges that prior to June 26, 2017, he was diagnosed by the ...