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Hayes v. ICC-CCA

United States District Court, D. Idaho

September 4, 2018

MICHAEL T. HAYES, Plaintiff,


          B. Lynn Winmill Chief U.S. District Court Judge

         Plaintiff Michael T. Hayes, a prisoner in the custody of the Idaho Department of Correction (“IDOC”), is proceeding pro se and in forma pauperis in this civil rights action. The Honorable Edward J. Lodge initially dismissed this case and entered judgment in January 2014, concluding that Plaintiff had failed to state a claim upon which relief could be granted. (Dkt. 17, 18.) The Ninth Circuit reversed in part and remanded, holding that Plaintiff's second amended complaint stated “a plausible claim that his protected [legal] mail was arbitrarily or capriciously opened outside his presence on two separate occasions, ” by Defendant Lisa Burke, in violation of the First Amendment. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1212 (9th Cir. 2017).[1] Judge Lodge reopened this case and entered a scheduling order, and the case was later reassigned to the undersigned judge. (Dkt. 32, 35, 64.)

         Now pending before the Court are cross-motions for summary judgment filed by Plaintiff and by Lisa Burke, the only remaining Defendant. (Dkt. 52, 59.) Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record and that oral argument is unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following Order denying Plaintiff's motion for summary judgment, granting Defendant Burke's motion for summary judgment, and dismissing this case with prejudice.


         Although Plaintiff at times refers to different pleadings he has submitted in this case-for example, a proposed amended complaint lodged on August 31, 2017 (Dkt. 42; see also Hayes Aff. dated Sept. 6, 2017, Dkt. 52-4, at 1)-the operative complaint in this case remains Plaintiff's second amended complaint (“SAC”); that pleading was ordered filed by the Court, as a separate docket entry, on March 30, 2017. (Dkt. 32 & 33.)

         After the Ninth Circuit's partial reversal and remand, only two claims remain for adjudication. Plaintiff alleges that, on two occasions-once on December 28, 2010, and again on March 1 or 2, 2011[2]-Defendant Lisa Burke violated the First Amendment by opening Plaintiff's legal mail outside of his presence. Hayes, 849 F.3d at 1211-12.


         1. Standard of Law Governing Summary Judgment

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “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). One of the principal purposes of the summary judgment rule “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored procedural shortcut, ” but is instead the “principal tool[] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327.

         “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, a case will survive summary judgment only if there is a genuine dispute as to a material fact. Material facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The moving party is entitled to summary judgment if that party shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular materials in the record or show that the adverse party is unable to produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court must consider “the cited materials, ” but it may also consider “other materials in the record.” Fed.R.Civ.P. 56(c)(3). The Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal quotation marks omitted). Instead, the “party opposing summary judgment must direct [the Court's] attention to specific, triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

         If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, “there must be evidence on which [a] jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         Material used to support or dispute a fact should be “presented in a form that would be admissible in evidence, ” or it may be subject to being stricken. Fed.R.Civ.P. 56(c)(2). Affidavits or declarations submitted in support of or in opposition to a motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). In determining admissibility for summary judgment purposes, it is the content of the evidence, rather than its form, that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003).

         If a party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the Court may consider that fact to be undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant summary judgment for the moving party “if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).

         Where, as here, the parties submit cross-motions for summary judgment, “each motion must be considered on its own merits.” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). “In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion.” Id. Where the nonmoving party bears the burden of proof at trial, the moving party may prevail simply by “pointing out to the district court[] that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. However, where the moving party bears the ultimate burden of proof, that party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (internal quotation marks omitted).

         The Court does not determine the credibility of affiants or weigh the evidence set forth by the parties. Although all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Ninth Circuit “ha[s] repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (internal quotation marks omitted). Authentication, required by Federal Rule of Evidence 901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit must contain “testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document.” Id.

         Pro se inmates are exempted “from strict compliance with the summary judgment rules, ” but not “from all compliance.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018). In responding to a motion for summary judgment, a pro se inmate must submit at least “some competent evidence, ” such as a “declaration, affidavit, [or] authenticated document, ” to support his allegations or to dispute the moving party's allegations. Id. at 873 (upholding grant of summary judgment against pro se inmate because the “only statements supporting [plaintiff's] ... argument are in his unsworn district court responses to the defendants' motion for summary judgment and to the district court's show-cause order”).

         2. Standards of Law Governing Interference-with-Mail ...

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