(PC) Leen v. Montejo

• Court: District Court, E.D. California
• Decided: January 25, 2024
• Docket: 2:20-cv-02231
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOVIE DEWDROP LEEN, No. 2:20-cv-02231-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 CUEVA, et al., (Doc. Nos. 42, 47) 15 Defendants. 16 17 Plaintiff Dovie Dewdrop Leen is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 29, 2023, the assigned magistrate judge issued findings and 21 recommendations recommending that the motion for summary judgment (Doc. No. 42) filed on 22 behalf of the only remaining defendant in this action, Dr. Montejo, be granted in part and denied 23 in part. (Doc. No. 47.) Specifically, based upon the evidence submitted by the parties, the 24 magistrate judge concluded that defendant Montejo was entitled to summary judgment in his 25 favor on plaintiff’s retaliation claim but not as to plaintiff’s claim that defendant Montejo had 26 sexually assaulted plaintiff during a medical examination by inserting his hand between plaintiff’s 27 inner thigh and genitals and wiggling his hand back and forth eight to ten times while touching 28 both. (Id. at 9–15.) As to the latter claim, the magistrate judge concluded that the evidence 1 before the court, which was essentially limited to plaintiff’s sworn testimony that a sexual assault 2 had taken place and defendant’s sworn testimony that it did not, established a disputed issue of 3 material fact precluding the granting of summary judgment as to plaintiff’s Eighth Amendment 4 claim on the merits or on qualified immunity grounds. (Id. at 9–11, 14–16.) 5 Those findings and recommendations were served on the parties and contained notice that 6 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 16.) 7 Plaintiff filed no objections and the time to do so has passed. However, on November 29, 2023, 8 defendant filed objections to the findings and recommendations. (Doc. No. 49.) In those 9 objections defendant first argues that the magistrate judge erred in disregarding defendant’s 10 evidence that the Medical Board of California had found plaintiff’s claim of a sexual assault to be 11 unsubstantiated. (Id. at 3–4.) In addition, defendant suggests that the magistrate judge’s asserted 12 failure to adequately consider such evidence also somehow called into question the denial of 13 summary judgment on qualified immunity grounds. (Id. at 3.) The undersigned finds these 14 objections to be wholly unpersuasive. 15 First, the only evidence presented on summary judgment by defendant in this regard was a 16 one page letter from the Medical Board of California dated July 29, 2022, to defendant stating 17 that an investigation into a complaint made against him had concluded and the file had been 18 closed with no further action anticipated. (Doc. No. 42–4 at 91.) In addition, defendant presented 19 the declaration of his counsel before the Medical Board in which counsel stated that a Board 20 investigator interviewed defendant and, in counsel’s opinion, believed his denial of a sexual 21 assault and did not believe plaintiff’s allegation. (Doc. 42–5 at 2.) However, counsel also 22 declared that due to the confidentiality of such investigations, the Board’s file containing the 23 evidence considered and conclusions reached is not available. (Id.) Notably, nowhere in 24 defendant’s motion, reply in support of the motion for summary judgment or objections does 25 defendant’s counsel cite any authority for the proposition that any of this is evidence that may be 26 properly considered on summary judgment. Even if it were, no argument is advanced by 27 defendant as to the significance of the Board’s letter and counsel’s declaration or in what way it 28 could be found to support the granting of summary judgment in defendant’s favor. Clearly, 1 defendant’s counsel believes that plaintiff’s evidence, in the form of his own testimony that a 2 sexual assault occurred, lacks credibility. Nonetheless, it is even more clear that in considering a 3 motion for summary judgment a court must neither “weigh the evidence and determine the truth 4 of the matter,” nor “make any credibility determinations.” Zetwick v. County of Yolo, 850 F.3d 5 436, 441 (9th Cir. 2017) (quoting and citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 6 (1986)); see also Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1035–36 (9th Cir. 7 2005) (“Such observations go to whether Dominguez is credible, a determination that is 8 exclusively within the province of the factfinder at trial, not the district court on summary 9 judgment[.]”). 10 Finally, in his objections defendant suggests that perhaps there is additional evidence that 11 could be gathered in support of his motion for summary judgment and that the court should allow 12 him the opportunity to find and present such evidence. (Doc. No. 49 at 4) (citing Fed. R. Civ. 13 P. 56(e)). Defendant’s objection in this regard is based on nothing more than his counsel’s 14 speculation that additional relevant evidence could possibly exist. Objecting on that basis lacks 15 merit. The undersigned would also note that under the scheduling order governing this case, the 16 deadlines established therein having been extended several times at the request of defendant’s 17 counsel already, the deadline for the filing of dispositive motions in this case was March 15, 18 2023. (Doc. No. 41 at 2.) If defendant discovers additional evidence which his counsel believes 19 supports a motion for summary judgment as to plaintiff’s remaining Eighth Amendment claim, 20 his counsel may seek to re-open law and motion in this case. However, such a motion would 21 have to include a showing of good cause. See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth 22 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) . “Unlike Rule 15(a)’s liberal amendment 23 policy which focuses on the bad faith of the party seeking to interpose an amendment and the 24 prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the 25 diligence of the party seeking the amendment.”) 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 28 ///// 1 | including defendant’s objections, the court concludes that the findings and recommendations are 2 | supported by the record and proper analysis. 3 Accordingly: 4 1. The findings and recommendations issued on November 29, 2023 (Doc. No. 47) 5 are adopted; 6 2. Defendant’s motion for summary judgment in his favor (Doc. No. 42) is granted as 7 to plaintiff's retaliation claim and denied as to plaintiff's Eighth Amendment claim 8 based on an alleged sexual assault; and 9 3. This action is referred back to the assigned magistrate judge for further 10 proceedings including the issuance of a Final Pretrial Order. IT IS SO ORDERED. | pated: _ January 24, 2024 □□□ A. 2, ye 13 DALE A. DROZD 4 UNITED STATES DISTRICT JUDGE

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