Donald Burchett v. Robert Bromps

MEMORANDUM *

Plaintiff-Appellant Donald Burchett (“Burchett”) appeals the summary judgment grant to defendant-appellee Robert Bromps (“Bromps”), Burchett’s parole officer, in Burchett’s suit for violation of his First Amendment rights under 42 U.S.C. § 1983 . Burchett argues the district court improperly weighed his direct testimony evidence — that Bromps violated the Establishment Clause by imposing an improper oral condition on Burchett’s parole (limiting the denomination of church Burchett could attend) — against contrary evidence produced by Bromps. Burchett argues that the district court should have treated his testimony as true in considering Bromps’ motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 , and affirm.

Ordinarily a district court may not weigh direct evidence presented by the nonmoving party against evidence presented by the moving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987). It must accept a non-moving party’s direct evidence as true, id, and generally may not disregard direct evidence on the basis that it is implausible or incredible. See McLaughlin v. Liu, 849 F.2d 1205, 1207-08…

concurring in the judgment.

I agree with the Memorandum Disposition’s result affirming the district court’s grant of summary judgment to Robert Bromps. I write separately to emphasize that I believe summary judgment was properly granted solely because of the absence of a genuine issue of material fact in this case, a ground accented as additional and secondary by the majority’s disposition.

*608 This case is properly resolved solely on the grounds that Burchett relates a statement of Bromps which makes no sense. Bromps’s alleged statement is contrary to common sense and, indeed, counterintuitive, since the purpose of limiting Burchett’s visits were to prevent Burchett from being near children. Since both the Seventh Day Adventist church and the Assembly of God church have children present, the statement does not make sense. Put another way, no reasonable jury could have believed the statement.

The only reasonable basis upon which such a statement would be made is that Bromps disfavored Seventh Day Adventists and favored the Assembly of God. However, there is absolutely no evidence of that attitude and a great deal of evidence showing the absence of any such attitude.

If…

FILED

NOT FOR PUBLICATION JAN 13 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD COLE BURCHETT, No. 10-35763

Plaintiff - Appellant, D.C. No. 2:07-cv-00346-JLQ

v.

MEMORANDUM*

ROBERT BROMPS and TODD WIGGS,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Justin L. Quackenbush, Senior District Judge, Presiding

Argued and Submitted August 30, 2011 Seattle, Washington

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

Plaintiff-Appellant Donald Burchett (“Burchett”) appeals the summary

judgment grant to defendant-appellee Robert Bromps (“Bromps”), Burchett’s parole

officer, in Burchett’s suit for violation of his First Amendment rights under 42 U.S.C.

§ 1983. Burchett argues the district court improperly weighed his direct testimony

evidence—that Bromps violated the Establishment Clause by imposing an improper

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. oral condition on…