(PC) Sekona v. Hernandez ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ETUATE SEKONA, No. 2:17-cv-0346-KJM-EFB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 JOE LIZARRAGA, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel this action brought pursuant to 42 17 U.S.C. § 1983. Defendants Hang, Thomas, Banks, and Hernandez, the remaining defendants in 18 this action, have moved for summary judgment. ECF No. 62. Plaintiff opposes that motion and 19 has also filed a motion to compel further discovery responses from defendants. ECF No. 67. As 20 discussed below, the motion to compel is denied and it is recommended that the motion for 21 summary judgment be granted in part and denied in part. 22 I. Plaintiff’s Claims 23 This case currently proceeds on plaintiff’s first amended complaint.1 ECF No. 18. 24 Plaintiff alleges as follows: Defendant Correctional Officer Hang had been assigned to be 25 plaintiff’s employee assistant in an unspecified case, but did not help plaintiff or do “his part.” 26 27 1 On September 28, 2018, the court dismissed plaintiff’s claims against defendants Lizarraga, Chambers, and Mesa, ECF No. 30, and the portions of the complaint dealing with the 28 alleged conduct of the those parties need not be summarized here. 1 Id. at 7. In response, plaintiff filed an administrative grievance against Hang. Id. On March 25, 2 2016, plaintiff was attacked on the prison yard by fellow inmate Parson. Id. at 4. Hang witnessed 3 the attack but did not stop it or help afterward. Id. He told other officers on the yard not to help 4 plaintiff. Id. at 7. None of the officers helped plaintiff or reported the attack. Id. Plaintiff tried 5 to speak about it twice to defendant Correctional Officer Thomas, but Thomas refused to talk to 6 him. Id. at 4, 5. Plaintiff spoke about the attack to defendant Correctional Officer Banks, who 7 refused to help him or to label Parson as plaintiff’s enemy and separate the two inmates. Id. On 8 March 29, 2016, Parson attacked plaintiff again. Id. Plaintiff defended himself, which resulted in 9 disciplinary action against plaintiff. Id. At the hearing on the disciplinary action, defendant 10 Hernandez refused to call plaintiff’s requested witnesses. Id. 11 The court first addresses plaintiff’s discovery motion. 12 II. The Motion to Compel 13 Plaintiff argues broadly that defendants did not adequately respond to his discovery 14 requests and seeks an order compelling further responses. ECF No. 67. But plaintiff has not 15 identified any specific discovery response(s) nor has he articulated why he believes the response 16 was not satisfactory. Instead, plaintiff has simply appended to the motion the entirety of 17 defendants’ responses to his requests for admission, requests for production of documents, and 18 interrogatories. The court has reviewed those responses and cannot determine that any particular 19 response was inadequate on its face. Plaintiff provides no help in this matter. 20 The Court does not hold prisoners proceeding pro se to the same standards that it holds attorneys. However, at a minimum, as the moving party plaintiff bears the burden of 21 informing the court of which discovery requests are the subject of his motion to compel and, for each disputed response, why defendant’s objection is not justified. 22 23 Waturbury v. Scribner, No. 1:05-cv-0764 OWW DLB PC, 2008 U.S. Dist. LEXIS 53142, at *3 24 (E.D. Cal. May 7, 2008). Accordingly, the motion is denied. 25 III. The Motion for Summary Judgment 26 A. Summary Judgment Standards 27 Summary judgment is appropriate when there is “no genuine dispute as to any material 28 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 1 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 2 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 3 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 4 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 5 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 6 motion asks whether the evidence presents a sufficient disagreement to require submission to a 7 jury. 8 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 9 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 10 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 11 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 12 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 13 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 14 motion and identifying those portions of the record, together with affidavits, if any, that it 15 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 16 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 17 its burden with a properly supported motion, the burden then shifts to the opposing party to 18 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 19 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 20 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 21 to summary judgment procedures. Depending on which party bears that burden, the party seeking 22 summary judgment does not necessarily need to submit any evidence of its own. When the 23 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 24 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 25 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 26 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 27 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 28 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 1 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 2 should be entered, after adequate time for discovery and upon motion, against a party who fails to 3 make a showing sufficient to establish the existence of an element essential to that party’s case, 4 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 5 circumstance, summary judgment must be granted, “so long as whatever is before the district 6 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 7 satisfied.” Id. at 323. 8 To defeat summary judgment the opposing party must establish a genuine dispute as to a 9 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 10 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 11 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 12 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 13 determined by the substantive law applicable for the claim in question. Id. If the opposing party 14 is unable to produce evidence sufficient to establish a required element of its claim that party fails 15 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 16 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 17 at 322. 18 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 19 the court must again focus on which party bears the burden of proof on the factual issue in 20 question. Where the party opposing summary judgment would bear the burden of proof at trial on 21 the factual issue in dispute, that party must produce evidence sufficient to support its factual 22 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 23 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 24 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 25 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 26 demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such 27 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 28 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 1 The court does not determine witness credibility. It believes the opposing party’s 2 evidence and draws inferences most favorably for the opposing party. See id. at 249, 255; 3 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 4 proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l 5 Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing 6 Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary 7 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On 8 the other hand, the opposing party “must do more than simply show that there is some 9 metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead 10 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 11 Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary 12 judgment. 13 Concurrent with the motion for summary judgment, defendants advised plaintiff of the 14 requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. 15 ECF No. 62-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 16 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 17 849 F.2d 409 (9th Cir. 1988). 18 B. Analysis 19 Defendants advance several arguments in favor of summary judgment. The court 20 addresses those arguments in the order presented in the motion.2 21 ///// 22 ///// 23 24 2 Defendants also argue that the court should disregard plaintiff’s opposition because it fails to comply with Local Rule 260(b). ECF No. 68 at 2-3. Plaintiff is a pro se, indigent inmate 25 whose first language is not English. He is also incarcerated. Furthermore, his opposition brief, 26 which is handwritten, identifies the facts which he specifically disputes and does so in the context of his arguments, which is frankly more useful than a separate enumerated list that does not place 27 the facts in the context of his arguments. Requiring plaintiff to reproduce defendants’ itemized list of facts would add nothing of substance beyond what plaintiff has already submitted. 28 Accordingly, in the interest of judicial economy this argument is rejected. 1 1. Deliberate Indifference 2 Defendants Hang, Thomas, and Banks argue that they were not deliberately indifferent to 3 plaintiff’s Eighth Amendment rights. Prison officials are obligated by the Eighth Amendment to 4 take reasonable measures to protect prisoners from violence by other prisoners. Farmer v. 5 Brennan, 511 U.S. 825, 833 (1994). To succeed on a failure-to-protect claim against an official, 6 an inmate must establish three elements. First, the inmate must show that he was incarcerated 7 under conditions posing a substantial risk of serious harm. Id. Second, he must show that the 8 official was deliberately indifferent to his safety. Id. “Deliberate indifference” occurs when an 9 official knows of and disregards an excessive risk to an inmate’s safety. Id. at 837. “[T]he 10 official must both be aware of facts from which the inference could be drawn that a substantial 11 risk of serious harm exists, and he must also draw the inference.” Id. Third, the inmate must 12 show that the defendants’ actions were both an actual and proximate cause of his injuries. Lemire 13 v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). This means that the 14 inmate’s injury would not have occurred but for the official’s conduct (actual causation) and no 15 unforeseeable intervening cause occurred that would supersede the official’s liability (proximate 16 causation). Conn v. City of Reno, 591 F.3d 1081, 1098-1101 (9th Cir. 2010), vacated by 131 S. 17 Ct. 1812 (2011), reinstated in relevant part by 658 F.3d 897 (9th Cir. 2011). 18 To determine whether an official had the state of mind necessary to show deliberate 19 indifference, a plaintiff must show two things: (1) that the official was aware of the risk of harm 20 (or that the risk was obvious) and (2) that the official lacked a reasonable justification for 21 exposing the inmate to the risk. Lemire, 726 F.3d at 1078. 22 Defendant Hang argues that the undisputed facts show that he was unaware of any risk of 23 harm to plaintiff before March 25, 2016, because plaintiff never told him of any safety concerns 24 regarding Parson. ECF No. 62-2 at 10. It is true that plaintiff testified in his deposition that he 25 did not have any conversations with Hang about Parson prior to March 25, 2016. ECF No. 62-4 26 at 20. But Hang’s argument ignores plaintiff’s assertion that Hang witnessed the March 25th 27 attack, and in its wake did nothing to address it (and actually prevented others from doing so) and 28 that this inaction allowed the March 29th incident to occur. Although Hang may dispute 1 plaintiff’s assertion in that regard, the court does not resolve credibility as to conflicting 2 percipient witnesses on summary judgment. Thus, Hang has not shown an entitlement to 3 summary judgment as to plaintiff’s Eighth Amendment claim.3 4 Defendant Thomas also argues that he was not aware of any risk of harm. He argues that 5 plaintiff never told him of any safety concerns regarding Parson before the March 25, 2016 attack 6 and, therefore, Thomas was unaware of any risk of harm to plaintiff before prior to that attack. 7 ECF No. 62-2 at 10. But plaintiff does not argue that Thomas was deliberately indifferent to his 8 safety by failing to protect him from the March 25th attack. The fact that plaintiff did not relay 9 any concerns to Thomas prior to March 25th is simply not in issue. But plaintiff does contend 10 that Thomas was aware of the risk of attack prior to the March 29 incident. 11 As to the March 29 attack, Thomas argues that he was not aware of any risk after the first 12 attack because plaintiff never spoke to him between March 25th and March 29th about Parson. 13 Id. at 7. But plaintiff clearly disputes that assertion. Plaintiff testified in his deposition that he 14 went to Thomas on either March 27th or March 28th and “told him I wanted to talk to him about 15 the problem that was happening between me and Parson.” ECF No. 66 at 42-43. He also testified 16 that he wrote several letters to Thomas between March 25th and 29th asking to be protected from 17 Parson. Id. at 44-46; ECF No. 62-4 at 73 (document appearing to be a letter addressed to Thomas 18 on March 28, 2016 regarding assault by Parson). Resolving the credibility of the two witnesses 19 over this material factual dispute is not appropriate on a summary judgment motion. Thus, 20 Thomas is not entitled to summary judgment on plaintiff’s Eighth Amendment claim. 21 3 Hang also argues – in the retaliation section of his opening brief and the deliberate 22 indifference section of his reply – that he could not have proximately caused the March 29th 23 assault because he was not at work on the 29th and because Banks, Hang’s superior, determined just after the March 25th attack that Parson was not a threat to plaintiff. ECF Nos. 62-2 at 11-12 24 & 68 at 4-5. The argument must be rejected. Hang does not develop – and notably cites no authority for – his argument that his alleged failure to act after the attack on the 25th cannot be a 25 cause of plaintiff’s harm on the 29th simply because Banks’s conduct also may have contributed 26 to the attack on the 29th. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 951 (9th Cir. 2014) (“An event may have multiple proximate causes.”). In 27 addition, the fact that Hang was not at work on March 29th does not negate the possibility that – as plaintiff alleges – the altercation that day would not have occurred had Hang responded 28 differently to the altercation on March 25th. 1 Defendant Banks argues that the undisputed facts show that she was not aware that Parson 2 posed an excessive risk to plaintiff’s safety and that she responded reasonably to any risk that 3 existed. ECF No. 62-2 at 10. She declares that plaintiff told her on March 25th that he and 4 Parson had had only a verbal (not physical) altercation, and that she immediately followed 5 institutional protocol by placing plaintiff and Parson in separate holding cells. ECF No. 62-6 at 6 ¶¶ 3-4. She then interviewed each inmate separately. Id., ¶ 5. She asserts that they both told her 7 that the altercation was only verbal, that they had resolved the issue, that there would be no 8 further altercations between them, and that they could safely program together. Id. She also 9 states that she had plaintiff and Parson sign a CDC form 128-B documenting that they did not 10 consider each other enemies. Id. Banks declares that she also reviewed each inmate’s file to 11 ensure that there was no documentation of prior altercations or other safety concerns between 12 them. Id., ¶ 6. Based on her interviews with Parson and plaintiff and her review of their files, she 13 did not believe that Parson presented any risk to plaintiff’s safety. Id., ¶ 7. 14 Plaintiff, on the other hand, testified in his deposition that he asked Banks to label Parson 15 as his enemy. ECF No. 63, Notice of Lodging of Pl.’s Dep. Transcript; Pl.’s Dep. at 43:6-7. He 16 claims that instead, Banks kept plaintiff in the holding cage for three hours. Id. at 47:14-21. 17 Plaintiff testified that it was “hard” for him in the holding cage, but Banks kept him there “until I 18 changed my mind and changed my decision.” Id. Plaintiff signed the CDC form 128-B only to 19 get released from the holding cage. Id. Plaintiff claims that, in this way, Banks saved herself 20 from having “to file a lot of paperwork for the problem.” Id. Plaintiff contests Banks’s assertion 21 that he told her the altercation was only verbal and not physical. ECF No. 66 at 11. 22 While Banks no doubt challenges the veracity of plaintiff’s claims, the parties’ accounts 23 of the events in the program office following the March 25th incident are at odds. Either Banks 24 diligently responded to the issue between the inmates, or she pressured plaintiff to sign off on 25 Parson as a non-enemy to save herself some trouble despite plaintiff’s report that Parson 26 physically attacked him. The court cannot resolve these disputed facts – and the credibility of 27 plaintiff and Banks that the dispute hinges on – at this stage of the proceedings, and accordingly, 28 may not grant Banks summary judgment on plaintiff’s Eighth Amendment claim. 1 2. Retaliation 2 To establish liability for retaliation in violation of the First Amendment, a prisoner must 3 show five elements: (1) that a state actor took some adverse action against him (2) because of (3) 4 his protected conduct, (4) that such action chilled his exercise of his First Amendment rights, and 5 (5) that the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 6 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not demonstrate that his speech was 7 actually inhibited or suppressed, but merely that the defendant’s conduct was such as would chill 8 or silence a person of ordinary firmness from future First Amendment activities. Id. at 568-69. 9 Conduct protected by the First Amendment includes communications that are “part of the 10 grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). 11 Defendant Hang argues that the undisputed evidence shows that he did not proximately 12 cause Parson to attack plaintiff on March 29th, and “[t]here is thus no evidence that Hang took 13 any adverse action against Sekona on March 29, 2016.” ECF No. 62-2 at 12. To prevail in a 14 § 1983 action, a plaintiff must establish that the defendant’s conduct (or failure to act) was the 15 causation-in-fact and proximate cause of his claimed injury. Harper v. City of L.A., 533 F.3d 16 1010, 1026 (9th Cir. 2008). 17 Hang conflates two distinct concepts – causation and the “adverse action” element of a 18 retaliation claim. While both elements must be shown for plaintiff to succeed on his claim, they 19 are distinct, and Hang’s argument on either ground is unpersuasive. First, the court must reject 20 Hang’s causation argument for the reasons stated supra, note 3. Second, plaintiff has consistently 21 averred that Hang deliberately refused to respond to Parson’s attack on plaintiff on March 25th 22 because plaintiff had recently filed a grievance against Hang. ECF No. 18 at 7 (plaintiff’s 23 verified complaint); Pl.’s Dep. at 48:17-49:10. This testimony suffices to raise a triable issue that 24 Hang took an adverse action – choosing not to respond to the attack – in retaliation for plaintiff’s 25 recent grievance against him. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“[T]iming 26 can properly be considered as circumstantial evidence of retaliatory intent.”). 27 ///// 28 ///// 1 3. Due Process 2 Defendants Hang and Hernandez argue that plaintiff’s due process claim against them 3 must be dismissed because success on the claim would affect the duration of plaintiff’s sentence. 4 ECF No. 62-2 at 13. The court notes that plaintiff has not asserted a due process claim against 5 Hang and does not dispute that Hang was not involved in the rules violation hearing that followed 6 the March 29, 2016 incident with Parson. It appears that there may be confusion from plaintiff’s 7 complaint, which includes allegations about Hang’s conduct in an earlier disciplinary hearing. 8 ECF No. 18 at 7. A close reading of the complaint along with plaintiff’s deposition testimony 9 makes clear that this earlier hearing is only relevant to plaintiff’s retaliation claim against Hang 10 and is not the subject of any due process claim in this action. 11 As to the claim against Hernandez, the court agrees that it must be dismissed. Where an 12 inmate’s § 1983 claim challenges a disciplinary hearing that resulted in a loss of time credits, the 13 inmate must obtain reversal of that disciplinary conviction in a habeas or other action before he 14 may pursue the due process claim under § 1983. Muhammad v. Close, 540 U.S. 749, 751 (2004); 15 Edwards v. Balisok, 520 U.S. 541, 648 (1997). Hernandez has presented evidence, which 16 plaintiff does not refute, that plaintiff was assessed a loss of 181 days good-time credit as a result 17 of his conviction for battery with a deadly weapon based on the altercation with Parson on March 18 29, 2016. ECF No. 62-5 at 93-103. Plaintiff has presented no evidence that he has obtained a 19 reversal or expungement of the disciplinary conviction. Accordingly, his due process claim is not 20 yet cognizable in a § 1983 action and must be dismissed without prejudice. The court need not 21 address Hernandez’s additional arguments regarding the due process claim. 22 4. Qualified Immunity 23 Lastly, defendants argue that the court should afford them qualified immunity. To 24 determine whether to do so at the summary judgment stage, the court must consider whether the 25 undisputed facts show that a constitutional violation occurred, and whether the constitutional right 26 at issue was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 27 232 (2009). If the undisputed facts show no constitutional violation, or if the right was not clearly 28 established, the court should grant the official qualified immunity. Id. In determining whether 1 the right was clearly established, the court must ask (1) whether the law governing the official’s 2 conduct was clearly established and (2) whether a reasonable official, in the same position faced 3 by the defendants, would understand that his conduct violated the law. Saucier v. Katz, 533 U.S. 4 194, 202 (2001). 5 The constitutional right of an inmate to be free from violence at the hands of other inmates 6 has been clearly established since Farmer v. Brennan, 511 U.S. 825 (1994). Castro v. Cnty. of 7 L.A., 797 F.3d 654, 663(9th Cir. 2017). Further, the contours of the right were set forth with 8 sufficient clarity in Farmer to guide a reasonable officer. Id. at 664. The analysis must be made 9 “in light of the specific context of the case, not as a broad general proposition.” S.R. Nehad v. 10 Browder, 2019 U.S. App. Lexis 20590 *29, 929 F.3d 1125, __ (quoting S.B. v. County of San 11 Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)). But there need not be a prior case “directly on 12 point,” so long as there is precedent “plac[ing] the statutory or constitutional question beyond 13 debate.” S.R. Nehad, supra. Further, because the issue is raised in the context of a motion for 14 summary judgment, it must be analyzed under Rule 56 standards. See, e.g., id. 15 Defendants argue that they should be afforded immunity because reasonable officials in 16 their position would not understand that their conduct violated the law. But defendants’ 17 arguments for qualified immunity are all predicated on their version of facts which are both 18 material and genuinely disputed for the reasons addressed above. “[W]hen there are disputed 19 factual issues that are necessary to a qualified immunity decision, these issues must first be 20 determined by the jury before the court can rule on qualified immunity.” S.R. Nehad, id., at *28 21 (quoting Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017)). 22 Accordingly, there are no valid grounds for granting defendants qualified immunity at this 23 time. 24 IV. Order and Recommendation 25 In accordance with the above, it is hereby ORDERED that: 26 1. Plaintiff’s May 14, 2019 motion to compel (ECF No. 67) is DENIED; 27 2. Plaintiff’s May 13, 2019 motion for extension of time to file his opposition brief 28 (ECF No. 65) is GRANTED and the opposition is accepted as timely filed. 1 Further, it is RECOMMENDED that defendants’ April 25, 2019 motion for summary 2 || judgment (ECF No. 62) be granted in part and denied in part as follows: 3 1. Plaintiff’s due process claim against defendant Hernandez be dismissed without 4 prejudice; and 5 2. The motion for summary judgment be otherwise denied. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 || after being served with these findings and recommendations, any party may file written 9 | objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | DATED: August 19, 2019. 14 tid, PDEA EDMUND F. BRENNAN 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12