1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILLARD WAYNE BAKER, JR., Case No. 2:22-cv-01096-KJM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT BE DENED

14 C. SOLORANO, et al., ECF No. 79 15 Defendants.

16 17 18 Plaintiff brings this case alleging that defendants violated his Eighth Amendment rights by 19 failing to protect him from an attack by other inmates. ECF No. 30 at 3-4, 6. He also alleges that 20 an unnamed officer defendant failed to summon medical staff after the attack. Id. at 9. Pending 21 is his motion for summary judgment, ECF No. 79, to which defendants have filed an opposition, 22 ECF No. 93. I recommend that plaintiff’s motion be denied. 23 A. Legal Standards 24 Summary judgment is appropriate where there is “no genuine dispute as to any material 25 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 26 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 27 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 28 1 while a fact is material if it “might affect the outcome of the suit under the governing law.” 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 3 F.2d 1422, 1436 (9th Cir. 1987). 4 Rule 56 allows a court to grant summary adjudication, also known as partial summary 5 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 6 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 7 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 8 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a 9 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. 10 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 11 Each party’s position must be supported by (1) citations to particular portions of materials 12 in the record, including but not limited to depositions, documents, declarations, or discovery; or 13 (2) argument showing that the materials cited do not establish the presence or absence of a 14 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 15 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 16 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. 17 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 18 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 19 “The moving party initially bears the burden of proving the absence of a genuine issue of 20 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 21 moving party must either produce evidence negating an essential element of the nonmoving 22 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 23 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 24 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 25 initial burden, the burden then shifts to the non-moving party “to designate specific facts 26 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 27 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 28 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 1 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 2 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 3 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 4 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 5 The court must apply standards consistent with Rule 56 to determine whether the moving 6 party has demonstrated there to be no genuine issue of material fact and that judgment is 7 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 8 “[A] court ruling on a motion for summary judgment may not engage in credibility 9 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 10 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 11 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 12 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 13 198 F.3d 1130, 1134 (9th Cir. 2000). 14 Analysis 15 Plaintiff’s motion for summary judgment is little more than a restatement of his claims 16 and fails to establish the absence of genuine issues of material fact. By way of support, he offers 17 only his own declaration, ECF No. 79 at 5-6, a statement of undisputed facts, id. at 3-4, and 18 several exhibits, none of which proves his claims. The first exhibit is an internal prison 19 memorandum finding no violation of CDCR policy with respect to the incident at issue. Id. at 10- 20 11. The second is a reproduction of defendant Solorzano1 and Hill’s discovery responses, none of 21 which are specifically emphasized or obviously dispositive of plaintiff’s claims, id. at 12-37. 22 Third is plaintiff’s request for surveillance video, id. at 38, but no video is provided with the 23 motion. Fourth is a cursory rejection of plaintiff’s interrogatories to non-defendants. Id. at 39. 24 Fifth is plaintiff’s prison grievance concerning the attack. Id. at 40. The sixth exhibit is the 25 prison report of the attack incident, which does not show or suggest that defendants acted 26 improperly. Id. at 42-52. Seventh is a medical report of plaintiff’s injuries. Id. at 53-56. The 27 1 The name appears on the docket as “Solorano.” I will direct the Clerk of Court to 28 change the docket to reflect the proper spelling. 1 eighth and ninth exhibits are holding cell logs. Id. at 57-58. The tenth and final exhibit is 2 plaintiff’s settlement conference statement. Id. at 59-62. I have reviewed these exhibits and 3 conclude that, taken together, they fail to show that plaintiff is entitled to summary judgment. 4 They establish that an incident occurred, but not that defendants violated plaintiff’s rights in 5 connection therewith. Neither do these exhibits entitle plaintiff to summary judgment on his 6 claim for failure to summon medical attention. 7 Defendants’ opposition persuades me that denial of plaintiff’s motion is appropriate. 8 Defendants dispute that they were aware of any substantial risk to plaintiff’s safety. ECF No. 93 9 at 6-9. Defendants Morris and Solorzano have filed their own statement of disputed facts, 10 contradicting certain of plaintiff’s undisputed facts. ECF No. 93-5. Both defendants have also 11 filed declarations attesting to their proper conduct in connection with the incident. ECF Nos. 93- 12 2 & 93-3. 13 In light of the foregoing, I find that plaintiff has failed to shoulder his initial burden of 14 showing the absence of a genuine issue of material fact. 15 Conclusion 16 It is ORDERED that the Clerk of Court shall alter the docket to reflect that defendant 17 “Solorano” is appropriately “Solorzano.” 18 Further, I RECOMMEND that plaintiff’s motion for summary judgment, ECF No. 79, be 19 DENIED. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of 22 service of these findings and recommendations, any party may file written objections with the 23 court and serve a copy on all parties. Any such document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 25 within fourteen days of service of the objections. The parties are advised that failure to file 26 objections within the specified time may waive the right to appeal the District Court’s order. See 27 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 28 1991). 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ September 16, 2024 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28