Witkin v. Wise

MICHAEL WITKIN, Plaintiff, v. D. WISE, et al., Defendants.

No. 2:19-cv-0974 KJM KJN P

United States District Court, E.D. California

February 7, 2022

FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary judgment. (ECF Nos. 90, 94.) For the reasons stated herein, the undersigned recommends that defendants' summary judgment be granted and plaintiff's summary judgment motion be denied.

II. Legal Standard for Summary Judgment

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) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (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. See Matsushita 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. See Fed.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, see Anderson 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, see Wool 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 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).

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. See Anderson, 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. See Matsushita, 475 U.S. at 587; Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). 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. See Richards 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).

By notice provided on February 28, 2020 (ECF No. 26), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

III. Plaintiff's Claims

This action proceeds on plaintiff's verified second amended complaint as to defendants Wise and Matteson.^[1] (ECF No. 49.)

Plaintiff alleges that on March 31, 2018, he was sitting in the visiting room at California State Prison-Solano (“CSP-Solano”) with his brother, sister-in-law, niece and two nephews. (Id. at 3.) Officer Airey approached the table where plaintiff and his family sat. (Id.) Officer Airey asked if anyone at the table was “ADA.” (Id.) Plaintiff responded that he and his family were on an “excessive distance” visiting appointment and did not wish to be further disturbed. (Id.) Officer Airey walked away. (Id.)

Approximately five minutes later, Officer Airey returned. (Id.) Officer Airey told plaintiff that he was seated at an ADA table that happened to be located in the children's area and that plaintiff's lower bunk chrono had expired three days earlier. (Id.) Officer Airey told plaintiff that he had to surrender his table. (Id.) Plaintiff told Officer Airey that he had already requested no further harassment and asked Officer Airey to step away. (Id.) Officer Airey refused to step away, telling plaintiff, “I need that table.” (Id.) Plaintiff saw that there were some “purported ADA visitors” standing off to the side, so plaintiff slid the table over to these visitors. (Id. at 3-4.) Officer Airey stepped away. (Id. at 4.)

Five minutes later, Officer Airey returned with a female colleague. (Id.) Officer Airey demanded that plaintiff and his family give up their chairs. (Id.) Plaintiff laughed and responded, “Why would we do that when there are hundreds of the same chairs stacked right there against the wall where anyone can go get some.” (Id.) Plaintiff stated that he would do anything that “CCR” said he was required to do, but nothing else. (Id.)

Officer Airey returned five minutes later with a document stating that plaintiff's visit was terminated. (Id.) Plaintiff was escorted out of the visiting room and his visit was terminated. (Id.) Plaintiff was issued a Rules Violation Report for refusing to obey a direct order. (Id.)

Plaintiff alleges that defendant Wise presided over the disciplinary hearing. (Id.) Plaintiff requested to present the surveillance video from the visiting room as evidence. (Id. at 4-5.) Plaintiff alleges that defendant Wise pretended to make a few calls and then declared the video tape unavailable. (Id.) Plaintiff alleges that he knew defendant Wise was lying because the video tape had already been used to convict other inmates plaintiff knew of various offense involving their activities at the March 31, 2018 visit. (Id.)

Plaintiff alleges that defendant Wise denied his request to call inmate Maxwell as a witness. (Id.) Plaintiff also alleges that defendant Wise wrongly declared irrelevant plaintiff's questions for the reporting employee, i.e. Officer Airey. (Id. at 11.)

As legal claims, plaintiff alleges that defendant Wise violated his right to due process and state law during the disciplinary hearing by denying his request to present the surveillance video, denying his request to call inmate Maxwell as a witness, and refusing to allow him to ask the reporting employee certain questions. (Id.)

Plaintiff also alleges that defendant Wise violated the Eighth Amendment and state law by imposing a 90-days loss of outdoor exercise after finding plaintiff guilty of the rules violation. (Id. at 9-11.) Plaintiff alleges that defendant Matteson violated the Eighth Amendment and state law by upholding defendant Wise's decision to impose the 90-days loss of outdoor exercise. (Id.)

IV. Defendants' Summary Judgment Motion

A. Undisputed Facts

Defendants filed a statement of undisputed facts. (ECF No. 90-3.) Plaintiff filed a response to defendants' statement of undisputed facts, disputing defendants' fact nos. 9, 11 14, 15, 17, 18, 20, 25, 26, 29, 31 and 32. (ECF No. 99-1...