(PC) Witkin v. Wise ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WITKIN, No. 2:19-cv-0974 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 D. WISE, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 8, 2022 the Magistrate Judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Plaintiff has filed 23 objections to the findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. The 27 court writes separately only to address plaintiff’s objections. 28 ///// 1 Many of the arguments in those objections are irrelevant to the claims in the operative 2 complaint. Some arguments also mischaracterize the Magistrate Judge’s findings and 3 recommendations. For example, plaintiff contests the Magistrate Judge’s description of the 4 events in the jail’s visiting area, and he argues the record shows he obeyed correctional officers’ 5 orders, contrary to the Magistrate Judge’s findings. See, e.g., Objections at 4 (“With that state of 6 the record, the defendants having failed to produce any evidence that plaintiff disobeyed an order, 7 plaintiff did not have any burden to specifically aver that he did not disobey an order.”). The 8 dispute in this case, however, is not what happened in the visiting area. It is not whether plaintiff 9 obeyed or disobeyed orders. It is not whether correctional officers acted unprofessionally or 10 rudely. Rather, it is whether the defendants denied plaintiff due process in the prison 11 administrative hearing that followed. That question is the one the Magistrate Judge’s findings 12 and recommendations answers. As the Magistrate Judge explained, the defendants’ motion 13 shows plaintiff cannot prove he was denied due process, so summary judgment must be granted 14 on this claim. 15 Plaintiff also objects to the Magistrate Judge’s recommendation not to consider new 16 claims he raised for the first time at summary judgment. See Objections at 21–22; F&Rs at 21. 17 Although new arguments raised in opposition to summary judgment motions may function as late 18 requests for leave to amend, see Johnson v. Mateer, 625 F.2d 240, 242 (9th Cir. 1980), permitting 19 an amendment so late in this case would unduly delay it and unfairly prejudice the defendants, see 20 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (“Allowing [the plaintiffs] to 21 proceed with their [new] theory after the close of discovery would prejudice [the defendant]. A 22 complaint guides the parties’ discovery, putting the defendant on notice of the evidence it needs 23 to adduce in order to defend against the plaintiff’s allegations.”). The court adopts the Magistrate 24 Judge’s recommendation not to permit new claims. 25 Finally, plaintiff objects to the Magistrate Judge’s recommendation to grant summary 26 judgment to the defendants on his Eighth Amendment claim. As the Magistrate Judge explained, 27 plaintiff has cited no evidence that could prove the defendants disregarded his serious medical 28 needs by limiting his exercise time. See F&Rs at 21–22, 24–28. Nor has he cited evidence that 1 || could show he was harmed by a lack of exercise. See id. at 25. The court is also aware of no 2 || authority that could show the defendants’ actions deprived plaintiff of a constitutional right that 3 || was “clearly established” at the time, as would be necessary to overcome the defendants’ 4 | assertion of qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations filed February 8, 2022, are adopted in full; 7 2. Defendants’ summary judgment motion (ECF No. 90) is granted; 8 3. Plaintiff's summary judgment motion (ECF No. 94) is denied; and 9 4. The Clerk’s Office is directed to close this case. 10 | DATED: October 31, 2022. 12 3 CHIEF ED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28