(PC) Coleman v. Spearman

• Court: District Court, E.D. California
• Decided: August 12, 2024
• Docket: 2:19-cv-00369
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY V. COLEMAN, No. 2:19-cv-00369 AC 12 Plaintiff, 13 v. ORDER AND 14 M.E. SPEARMAN, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s complaint against defendant 19 Hartwick on an Eighth Amendment excessive force claim. ECF No. 8 (screening order). 20 Currently before the court are plaintiff’s motion to compel and defendant’s motion for 21 summary judgment. ECF Nos. 39, 49. The motions have been fully briefed by the parties. For 22 the reasons that follow, the court denies plaintiff’s motion to compel and recommends that 23 defendant’s motion for summary judgment be granted. 24 I. Plaintiff’s Motion to Compel 25 On October 2, 2022, plaintiff filed a motion to compel defendant to produce the edited and 26 unedited video tapes from the program office at HDSP where the incident took place. ECF No. 27 39. According to the motion, plaintiff asked for the video tapes from defense counsel on the day 28 of his deposition on August 24, 2022. ECF No. 39 at 1. Plaintiff did not attach any written 1 discovery request propounded on defendant which included a request for these videotapes.1 2 Defendant filed an opposition indicating that plaintiff’s motion was untimely since the 3 motion to compel deadline was August 26, 2022. ECF No. 43 (Opposition); see also ECF No. 34 4 (Discovery and Scheduling Order). Defendant argues that plaintiff has not explained his delay in 5 bringing this motion to compel after the deadline had already expired. ECF No. 43 at 3. 6 Secondly, plaintiff did not actually request the video tapes in any written discovery request to 7 defendant. ECF No. 43 at 3-4. Additionally, plaintiff does not identify the specific video tapes 8 he is seeking with any particularity or with reference to the any specific time frame. Id. at 4. To 9 the extent that the court construes plaintiff’s motion as a request to reopen discovery, defendant 10 submits that he would be prejudiced by the granting of such relief at this late stage in the 11 proceedings. “If the [c]ourt is inclined to order the production of the videos identified in the 12 motion to compel, [d]efendant[] request[s] that the [c]ourt allow [d]efendant[] to first assert 13 objections and a response and that the [c]ourt conduct an in-camera review before production is 14 ordered.” Id. at 4. 15 On a motion to compel, the moving party bears the burden of showing why the other 16 party’s responses are inadequate or their objections unjustified. See Williams v. Cate, 2011 WL 17 6217378 at *1, 2011 U.S. Dist. LEXIS 143862 *3 (E.D. Cal. Dec. 14, 2011) (citation omitted). 18 Even setting aside the untimeliness of plaintiff’s motion, he has not demonstrated that he made 19 any written request for the videotapes and therefore cannot show how defendant’s response to his 20 request for production was inadequate. Plaintiff does not explain why he did not include the 21 request for videotapes in his written discovery request to defendant. As a result, he has not met 22 his burden and the court denies his motion to compel defendant to produce the videotapes. 23 In considering whether to grant a motion to amend the scheduling order and re-open 24 discovery, the court considers: 25 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the 26

27 1 Nor was any such request included in the copy of Plaintiff’s Request for Production of Documents mistakenly filed with the court on May 8, 2022 and which was also served on 28 defendant. See ECF No. 36. 1 moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need 2 for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to 3 relevant evidence. 4 City of Pomona v. SQM North Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United 5 States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), vacated on 6 other grounds by 520 U.S. 939 (1997)). It is “significant” when a party is seeking to re-open 7 discovery rather than extend the discovery deadline. West Coast Theater Corp. v. City of 8 Portland, 897 F.2d 1519, 1524 (9th Cir. 1990). “The difference [between the two types of 9 requests] is considerable” because “a request for an extension acknowledges the importance of a 10 deadline, [while] a retroactive request suggests that the party paid no attention at all to the 11 deadline.” Id. 12 While trial has not yet been set in this case, the remaining factors weigh heavily against 13 reopening discovery in this case. Defendant opposes the motion and plaintiff has not been 14 diligent in seeking the videotapes even though he knew of their existence. Moreover, there is no 15 indication in the record that such videotapes from 7 years ago have been retained by CDCR. It 16 has not been demonstrated that reopening discovery at this late date would actually lead to the 17 relevant evidence plaintiff seeks. For all these reasons, the court denies plaintiff’s motion even 18 when liberally construed as a motion to reopen discovery. 19 II. Plaintiff’s Allegations 20 The events at issue occurred at High Desert State Prison where plaintiff was confined. On 21 May 16, 2018, while plaintiff was being escorted to administrative segregation, he was slammed 22 to the ground by defendant Hartwick after asking for a towel to cover his head to prevent his 23 hearing aids from getting wet in the rain. ECF No. 1 at 3-4. As a result, plaintiff injured his left 24 knee, chin, ring finger and right shoulder. ECF No. 1 at 4. This use of force was unprovoked and 25 unnecessary. ECF No. 1 at 5. Plaintiff asserts that defendant’s use of force was also racially 26 motivated. Id. 27 Attached to the complaint is a declaration signed under penalty of perjury by Inmate Ford 28 who observed defendant Hartwick escorting plaintiff on May 16, 2018. ECF No. 1 at 23. When 1 plaintiff stepped outside it was raining very hard, and Inmate Ford heard plaintiff ask defendant 2 Hartwick for a towel to prevent his hearing aids from being destroyed by the rain. ECF No. 1 at 3 23. According to Inmate Ford, defendant Hartwick replied that “it was too late.” Id. When 4 plaintiff asked to see the sergeant, defendant Hartwick stated that he was “gonna take [plaintiff]’s 5 ass down.” Id. Inmate Ford observed defendant slam plaintiff down face-first to the concrete. 6 Id. 7 III. Defendant’s Motion for Summary Judgment2 8 In the motion for summary judgment, defendant Hartwick asserts that there is no genuine 9 issue of material dispute on the merits of the excessive force claim and that he is entitled to 10 qualified immunity because his conduct did not violate clearly established law of which a 11 reasonable officer would have known. ECF No. 49. Specifically, defendant “Hartwick used 12 appropriate force to restore discipline—which was necessary to effect custody by keeping other 13 inmates and correctional staff safe when it appeared that Coleman was resisting escort—and not 14 maliciously and sadistically to inflict pain.” ECF No. 49 at 7. 15 Plaintiff’s opposition is handwritten and largely contains citations to case law rather than a 16 description of the material facts that are in dispute. ECF No. 54. At the end of his opposition, 17 plaintiff complains that defendant conducted discovery in bad faith or withheld discovery. ECF 18 No. 54 at 5. 19 By way of reply, defendant points out that plaintiff’s opposition does not identify any 20 evidence supporting his Eighth Amendment excessive force claim. As a result, defendant submits 21 that “[t]here is no genuine dispute that Defendant’s use of force was necessary and appropriately 22 proportional to the need for force, and therefore Defendant is entitled to summary judgment.” 23 ECF No. 55 at 2. With respect to qualified immunity, defendant argues that plaintiff does not 24 identify any clearly established case law that would have led defendant Hartwick to understand 25

26 2 Defendant contemporaneously served plaintiff with notice of the requirements for opposing the motion for summary judgment. ECF No. 49-6; see Klingele v. Eikenberry, 849 F.2d 409, 411 27 (9th Cir. 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide 28 notice). 1 that he was violating the law by using a physical hold and his body weight to prevent plaintiff 2 from “snatching back” during an escort to administrative segregation. ECF No. 55 at 3. For this 3 reason, defendant requests summary judgment on the basis of qualified immunity. Id. 4 IV. Legal Standards 5 A. Summary Judgment 6 Summary judgment is appropriate when the moving party “shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 9 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 10 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 11 moving party may accomplish this by “citing to particular parts of materials in the record, 12 including depositions, documents, electronically stored information, affidavits or declarations, 13 stipulations (including those made for purposes of the motion only), admissions, interrogatory 14 answers, or other materials” or by showing that such materials “do not establish the absence or 15 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 16 support the fact.” Fed. R. Civ. P. 56(c)(1). 17 “Where the non-moving party bears the burden of proof at trial, the moving party need 18 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 19 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 20 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 21 motion, against a party who fails to make a showing sufficient to establish the existence of an 22 element essential to that party’s case, and on which that party will bear the burden of proof at 23 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 24 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 25 a circumstance, summary judgment should “be granted so long as whatever is before the district 26 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 27 56(c), is satisfied.” Id. 28 //// 1 If the moving party meets its initial responsibility, the burden then shifts to the opposing 2 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 3 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 4 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 5 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 6 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 7 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 8 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 9 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 10 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 13 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 14 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 15 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 16 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 17 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 18 quotation marks omitted). 19 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 20 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 21 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 22 opposing party’s obligation to produce a factual predicate from which the inference may be 23 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 24 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 25 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 26 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 27 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 28 U.S. at 289). 1 B. Eighth Amendment Excessive Force 2 “[W]henever prison officials stand accused of using excessive physical force in violation 3 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is… whether force was 4 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 5 cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 (1992). The court’s inquiry into an excessive 6 force claim focuses on the extent of the prisoner’s injury, the need for application of force, the 7 relationship between that need and the amount of force used, the threat reasonably perceived by 8 the responsible officials, and any efforts made to temper the severity of a forceful response. 9 Hudson, 503 U.S. at 7 (1992) (quotation marks and citations omitted). While the absence of a 10 serious injury is relevant to the Eighth Amendment inquiry, it does not end it. Hudson, 503 U.S. 11 at 7. The malicious and sadistic use of force to cause harm always violates contemporary 12 standards of decency in violation of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 13 327 (1986). “Because the excessive force inquiry nearly always requires a jury to sift through 14 disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on 15 many occasions that summary judgment or judgment as a matter of law in excessive force causes 16 should be granted sparingly.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) 17 (citation omitted). 18 V. Undisputed Material Facts 19 Plaintiff did not separately respond to Defendant’s Statement of Undisputed Facts 20 (“DSUF”), ECF No. 49-7, and those facts are therefore deemed undisputed unless otherwise 21 specified. 22 At all times relevant to the allegations in the complaint, defendant Hartwick was 23 employed as a Correctional Officer at High Desert State Prison who was “responsible for 24 supervising inmates and maintaining the safety and security of the institution to prevent escapes 25 and injury by inmates to themselves, other inmates, correctional staff, and property.” ECF No. 26 49-2 at 2 ¶ 2 (Hartwick Declaration). 27 On May 16, 2018, plaintiff was being moved to the Administrative Segregation Unit after 28 receiving a disciplinary charge for possession of an inmate manufactured weapon that was found 1 in his cell that he solely occupied. DSUF at No. 3, 6. At around 6:40 p.m., defendant Hartwick 2 was assigned to escort plaintiff from the Facility D Program Office to the Administrative 3 Segregation Unit. DSUF at No. 4. Prior to this date, defendant had not had any interactions with 4 plaintiff. DSUF at No. 34. During this escort, he was handcuffed and placed in waist chains. 5 Plaintiff’s Deposition, 39: 24. 6 As plaintiff and defendant approached the door to leave the Facility D Program building, 7 plaintiff stopped walking and told defendant that he refused to leave the building. DSUF at No. 8 14. Plaintiff resumed walking, but as he got outside of the Program Office he attempted to pull 9 away and told defendant that he wanted a head cover because it was raining and he was worried 10 that his hearing aids would get wet. DSUF at No. 15; ECF No. 49-2 at 2, ¶ 3. Defendant 11 maintained his grip on plaintiff’s arm and kept him close. DSUF at No. 16. According to 12 defendant, he instructed plaintiff that he was not to pull away during an escort and that he would 13 see what was available to cover plaintiff’s head during the escort in the rain. DSUF at No. 17. 14 Plaintiff disputes this and indicates that defendant told him he was “not getting nothing.” 15 Plaintiff’s Deposition at 40: 11. 16 The parties agree that when they reached the doorway, plaintiff “snatched back” from the 17 escort. DSUF at No. 18. Defendant, who was equipped with pepper spray as well as a baton, 18 grabbed plaintiff’s right arm with his right hand and then used both his hands that were located on 19 plaintiff’s right arm to force plaintiff to the ground. DSUF at No. 26. Once plaintiff was on the 20 ground, defendant Hartwick placed his left knee in the middle of plaintiff’s upper back in order to 21 maintain control of him. DSUF at No. 27. 22 According to defendant, plaintiff was nearly able to break free from defendant’s grasp 23 and, from his vantage point, it appeared that plaintiff was lunging toward Correctional Officer 24 Shaver, who was escorting another inmate from a different Security Threat Group. DSUF at No. 25 19-20. Defendant thought that plaintiff might physically attack the other inmate or C.O. Shaver. 26 DSUF at No. 23. It was also defendant’s belief at the time that plaintiff had an issue with C.O. 27 Shaver concerning plaintiff’s property. DSUF at No. 21-22. 28 //// 1 According to plaintiff, defendant told him that he was “going down” and slammed him to 2 the ground. Plaintiff’s Deposition at 44: 2-3. Defendant then put his knee on plaintiff’s back 3 while plaintiff was on the ground. Plaintiff’s Deposition at 46:12. 4 Correctional Officer Rickett, who is not a party to this action, was working as a Security 5 Patrol Officer in Facility D at HDSP on the date at issue when he heard someone on the patio yell 6 “get down.” DSUF at No. 28; ECF No. 49-5 at 1 ¶ 2 (Declaration of B. Rickett). Once C.O. 7 Rickett arrived on the patio, he observed plaintiff, who was secured in waist chains, laying face 8 down on the ground in front of the Program Office door. DSUF at No. 29. He further observed 9 that defendant Hartwick had his left knee on plaintiff’s upper back. DSUF at No. 30. Officer 10 Rickett assumed control over plaintiff’s legs by placing his hands on plaintiff’s ankles to prevent 11 him from kicking any responding staff members. DSUF at No. 31. 12 Licensed Vocational Nurse Ochoa arrived at the scene and conducted a medical 13 evaluation of plaintiff noting that plaintiff reported pain to his chin, left knee, and right ring 14 finger; redness on his left knee; and, active bleeding on his right ring finger. DSUF at No. 35; 15 ECF No. 49-3 at 22 (Medical Report of Injury or Unusual Occurrence). 16 On this same day, plaintiff was issued a disciplinary Rules Violation Report (“RVR”) by 17 defendant Hartwick for willfully resisting a peace officer in the performance of their duties. 18 DSUF at No. 39. Plaintiff was ultimately found guilty of this disciplinary offense resulting in the 19 loss of 90 days of good-time credits and additional privileges. DSUF at Nos. 40-41. 20 The California Code of Regulations authorizes correctional officers to use reasonable 21 force on an inmate when necessary to subdue an attacker, overcome resistance, effect arrest, or 22 gain compliance with a lawful order. Cal. Code Regs. Tit. 15, § 3268(a)(1) (2018); DSUF at No. 23 24. Physical strength and holds, which is defined as any deliberate physical contact, using any 24 part of the body to overcome conscious resistance, is a use-of-force option available to 25 correctional officers. DSUF at No. 25; see also Cal. Code Regs. Tit. 15, § 3268(c)(3)(2018). 26 VI. Discussion 27 The undersigned finds that defendant has met his initial burden of informing the court of 28 the basis for his motion, and identifying those portions of the record which he believes 1 demonstrate the absence of a genuine issue of material fact. The burden therefore shifts to 2 plaintiff to establish the existence of a genuine issue of material fact. See Matsushita Elec. 3 Indus., 475 U.S. at 586 (1986). The court concludes that plaintiff has not submitted sufficient 4 evidence to create a genuine issue of material fact that defendant used excessive force against him 5 based on the factors in Hudson v. McMillan, 503 U.S. 1, 7 (1992).3 6 A. Injury Suffered by Plaintiff 7 Plaintiff’s allegations of injuries as well as the nursing examination record submitted by 8 defendant, all indicate that plaintiff’s injuries were not severe. Although the extent of injury and 9 the amount of force are not perfectly correlated, they are certainly connected enough for the 10 undersigned to find that this Hudson factor suggests that the amount of force used by defendant 11 was not severe enough to cause serious injury. See Wilkins v. Gaddy, 559 U.S. at 38. 12 B. Need for the Application of Force 13 An inmate’s refusal to comply with orders may present a threat to the safety and security 14 of a prison. Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009); Spain v. Procunier, 600 F.2d 15 189, 195 (9th Cir. 1979). In this case, it is undisputed that plaintiff “snatched back” during the 16 escort by defendant Hartwick. Accordingly, some amount of force was permissible to bring 17 plaintiff into compliance with the order to proceed to the Administrative Segregation Unit, and 18 this factor tips in defendant’s favor. 19 C. Relationship Between the Need for Force and the Amount of Force Used 20 In determining whether there has been an Eighth Amendment violation, the standard is 21 “malicious and sadistic force, not merely objectively unreasonable force.” Clement v. Gomez, 22 298 F.3d 898, 903 (9th Cir. 2002); Hudson, 503 U.S. at 9 (not every malevolent touch gives rise 23 to an Eighth Amendment claim). The undisputed material facts in this case demonstrate that 24 defendant used nothing more than his body weight to keep control of plaintiff during the escort, 25 even though he had a night stick and pepper spray available to him. Plaintiff does not present any 26

27 3 In light of this analysis and in the interests of judicial economy, the undersigned declines to address defendants’ remaining argument in support of their summary judgment motion based on 28 qualified immunity. 1 evidence which would support an inference that this use of defendant’s body weight was 2 malicious or sadistic in intent. Accordingly, this Hudson factor tips in defendant’s favor. 3 D. Threat Perceived by Defendants 4 The fourth Hudson factor considers “the extent of the threat to the safety of staff and 5 inmates, as reasonably perceived by the responsible officials on the basis of the facts known to 6 them.” Whitley, 475 U.S. at 321. In weighing this factor, courts should be mindful that “in 7 making and carrying out decisions involving the use of force to restore order in the face of a 8 prison disturbance, prison officials undoubtedly must take into account the very real threats the 9 unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates 10 against whom force might be used.” Id. at 320. Although plaintiff questions defendant’s 11 perception that plaintiff may have been lunging toward Correctional Officer Shaver or the other 12 inmate who was being escorted, he does not present any evidence upon which a rational juror 13 could find that he posed no threat to the safety of staff or inmates. This is especially true 14 considering that plaintiff was being escorted to administrative segregation because an inmate 15 manufactured weapon had been found in his cell which he solely occupied. As a result, this 16 factor weighs in defendant’s favor. 17 E. Efforts Made to Temper the Severity of the Force 18 Although the parties differ as to whether defendant made any effort to obtain a head 19 covering for plaintiff during the escort, this is not a material consideration in determining whether 20 defendant tempered the use of force against plaintiff. The relevant issue is whether defendant’s 21 use of force escalated in proportion to the threat posed by plaintiff’s behavior. Defendant did not 22 use any force against plaintiff until he physically resisted the escort to administrative segregation 23 by “snatching back.” Therefore, this factor does not tip in plaintiff’s favor. 24 In light of the above analysis of the Hudson factors, defendant Hartwick is entitled to 25 judgment as a matter of law. Therefore, the undersigned recommends granting his motion for 26 summary judgment. 27 //// 28 //// 1 VII. Plain Language Summary for Pro Se Party 2 Because you are acting as your own attorney in this case, the court wants to make sure 3 that you understand this order. The following information is meant to explain this order in plain 4 English and is not intended as legal advice. 5 The court has reviewed the evidence submitted by the parties and has concluded that there 6 is no need for a trial in this case. Even taken in the light most favorable to you, the evidence 7 would not support a verdict in your favor. The magistrate judge is therefore recommending that 8 defendant’s motion for summary judgment be granted. This means that your case will end 9 without the need for a trial. 10 You have twenty-one days to explain why this is not the correct outcome. Label your 11 explanation as “Objections to Magistrate Judge’s Findings and Recommendations.” The district 12 court judge assigned to your case will review any objections that are filed and will make a final 13 decision on the motion for summary judgment. 14 CONCLUSION 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. The Clerk of Court randomly assign this matter to a district court judge. 17 2. Plaintiff’s motion to compel (ECF No. 39) is denied and, even construed as a request to 18 reopen discovery, his motion is also denied. 19 IT IS FURTHER RECOMMENDED that: 20 1. Defendant’s motion for summary judgment (ECF No. 49) be granted. 21 2. Judgment be entered accordingly. 22 3. The Clerk of Court be directed to close this case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be served and filed within fourteen days after service of the objections. The 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 || DATED: August 12, 2024 ~ 4 ttt0n— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13