(PC) Hammler v. Clark ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, ) Case No.: 1:19-cv-00373-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BE DENIED 14 CLARK, et.al., ) ) [ECF No. 88] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Allen Hammler is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for summary judgment, filed on May 13, 2020. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants Gamboa, Peterson, Garza, Saucedo, Uhlik, and 24 Clark for violation of the First Amendment right to free exercise of religion. 25 On April 7, 2020, Defendants filed an answer to Plaintiff’s complaint. On April 8, 2020, the 26 Court issued the discovery and scheduling order. 27 28 1 As previously stated, on May 13, 2020, Plaintiff filed the instant motion for summary 2 judgment. Defendants filed an opposition on June 3, 2020. Plaintiff did not file a reply and the time 3 to do so has expired. Local Rule 230(l). 4 II. 5 DISCUSSION 6 A. Summary Judgment Standard 7 Any party may move for summary judgment, and the court shall grant summary judgment if 8 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. 10 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed 11 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including 12 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials 13 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot 14 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 15 The court may consider other materials in the record not cited to by the parties, but it is not required to 16 do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th 17 Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 18 Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must 19 affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. 20 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 21 In judging the evidence at the summary judgment stage, the court may not make credibility 22 determinations or weigh conflicting evidence, id., and it must draw all inferences in the light most 23 favorable to the nonmoving party and determine whether a genuine issue of material fact precludes 24 entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 25 942 (9th Cir. 2011) (quotation marks and citation omitted). The court determines only whether there is 26 a genuine issue for trial. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and 27 citations omitted). 28 1 2 B. Allegations of Complaint 3 Plaintiff alleges that he follows a Rastafarian faith which prohibits the consumption of raw meat. 4 Plaintiff is a participant in CDCR’s religious diet program and receives kosher meals. Plaintiff claims 5 that he received raw meat in his meals on several occasions at Corcoran and has alerted Defendants to 6 the problem, but he continues to receive raw meat in his meals. Plaintiff contends that because he is 7 being provided only raw meat, which he is prohibited from eating due to his religious beliefs, he is 8 unable to eat and is becoming sick and weak. 9 C. Plaintiff’s Motion for Summary Judgment 10 Plaintiff’s motion for summary judgment recites the allegations in his complaint regarding 11 being served raw meat which is contrary to his religious beliefs. 12 In opposition, Defendants argue that Plaintiff’s motion should be denied as procedurally and 13 substantively deficient because it does not contain a statement of undisputed facts with citations to 14 support evidence, or set forth any legal authority establishing the elements of his claims, nor submit 15 any evidence meeting that burden. 16 Plaintiff’s motion for summary judgment is defective in that Plaintiff’s undisputed facts are 17 simply assertions of brief legal conclusions. (ECF No. 88.) Local Rule 260(a), specifically requires 18 that “[e]ach motion for summary judgment or summary adjudication shall be accompanied by a 19 ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific material relied 20 upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, 21 interrogatory answer, admission, or other document relied upon to establish that fact.” Although 22 Plaintiff sets forth three statements of undisputed facts, the statements are broad legal conclusions, and 23 not specific statements of fact. Further, Plaintiff’s statement of undisputed facts fails to cite to any 24 pleading, affidavit, deposition, interrogatory, answer, admission, or other document relied upon to 25 establish the “facts” he claims are undisputed. Thus, Plaintiff, as the moving party, has failed to 26 produce evidence to meet his initial burden of proof, and the burden therefore has not shifted to 27 Defendants. Accordingly, Plaintiff’s motion for summary judgment should be denied, without 28 prejudice. wOAOe 4:2 □□ EO OAD MUO VO POM Ee AY OT Mt 1 Il. 2 RECOMMENDATION 3 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for □□□□□□ 4 || judgment, filed on May 13, 2020, be denied, without prejudice. 5 This Findings and Recommendation will be submitted to the United States District Juds 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) da 7 || after being served with this Findings and Recommendation, the parties may file written objections wi 8 ||the Court. The document should be captioned “Objections to Magistrate Judge’s Findings ar 9 || Recommendation.” The parties are advised that failure to file objections within the specified time □□ 10 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 201. 11 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 IT IS SO ORDERED. A (Fe _ 14 |! Dated: _ June 16, 2020 OF 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28