United States District Court, D. Idaho
MICHAEL T. HAYES, Plaintiff,
ICC-CCA; IDOC; SHANNON CLUNEY; LISA BURKE; and JANE DOES 1-3, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
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). Judge Lodge reopened this case and entered
a scheduling order, and the case was later reassigned to the
undersigned judge. (Dkt. 32, 35, 64.)
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.
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.)
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-Defendant Lisa Burke violated the First
Amendment by opening Plaintiff's legal mail outside of
his presence. Hayes, 849 F.3d at 1211-12.
PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT
Standard of Law Governing Summary Judgment
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.
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).
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).
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.
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).
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.”
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).
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).
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.
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”).
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