(PC) Bartholomew v. Moss

Opinion

KEVIN BARTHOLOMEW, No. 2:17-cv-2551-KJM-EFB P Plaintiff, v. ORDER S.MOSS, et al., Defendants. Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 14, 2020, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. After an extension of time, plaintiff has filed objections to the findings and recommendations. Defendants filed no objections. Mr. Bartholomew objects to Judge Brennan’s findings and recommendations first by reiterating his argument that his claim sufficiently identified Officer Martinez by referring to other unnamed “staff.” See ECF No. 48 at 2–3. As Judge Brennan explained, however, these vague references to staff do not give enough notice of his claims and do not exhaust those claims for purposes of 42 U.S.C. § 1983. See ECF No. 44 at 7–8. Second, Mr. Bartholomew argues he did refer to Officer Martinez in interviews and elsewhere and thus gave notice of his claims, but he admits that he abandoned allegations against Officer Martinez so that his grievance and appeal would comply with prison regulations. See ECF No. 48 at 3–6. The factual claims in his objections are also supported by no citations, and the court’s independent review of the record on summary judgment does not support his arguments. Third, Mr. Bartholomew objects to Judge Brennan’s recommendation that Mr. Bartholomew’s motion for summary judgment be denied with respect to his claim that his California Prison Industry Authority position was terminated in retaliation for filing grievances and appeals. See ECF No. 48 at 6–7. The court agrees with Judge Brennan’s finding that genuine disputes of material fact prevent summary judgment on this issue; the motivations underlying the termination remain in dispute. See ECF No. 44 at 9–12. Finally, Mr. Bartholomew objects to Judge Brennan’s recommendation that defendants’ cross-motion for summary judgment be granted with respect to claims about Mr. Bartholomew’s visiting porter position. See ECF No. 44 at 12. As Judge Brennan explained, Mr. Bartholomew would be required to prove at trial that this termination was adverse to him. See id. (citing Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)). But no evidence supports that conclusion. See id. And although Mr. Bartholomew objects, he does not explain why the termination was adverse or cite evidence in the record to show that it was. See ECF No. 48 at 6–7. In sum, this court has conducted a de novo review of this case in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed May 14, 2020, are adopted in full. 2. Defendants’ motion for summary judgment (ECF No. 31) is GRANTED in part as follows: a. Summary judgment is GRANTED as to the claims against defendant Martinez for failure to exhaust administrative remedies; b. Summary judgment is GRANTED as to claims regarding termination from the visiting porter position with respect to defendant Moss; and c. The motion be DENIED in all other respects. 3. Plaintiff’s motion for summary judgment (ECF No. 33) is DENIED. 4. This matter is referred back to the assigned magistrate judge for all further pretrial proceedings. DATED: October 6, 2020.