Opinion
No. CIV S-03-0466 FCD JFM P.
August 16, 2006
FINDINGS RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se, seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at California State Prison-Sacramento (CSP-Sacramento), who filed his second amended complaint on August 20, 2004. Plaintiff complains that defendant, Supervisor of Academic Instruction at CSP-Sacramento, violated his rights under the First Amendment to the Constitution. Plaintiff argues that defendant unlawfully retaliated against him after he filed a grievance, ultimately causing him to lose his job in the prison. Plaintiff seeks compensatory, general, and special damages in the amount of $250,000, unspecified punitive damages, the cost of this suit and reasonable attorneys fees, and such further relief as the court deems just and proper.
On December 1, 2005, defendant filed a motion for summary judgment. Plaintiff responded to defendants' motion on February 14, 2006. Defendant filed her reply on July 19, 2006.
In her motion, defendant argues that plaintiff has failed to offer any evidence that defendant engaged in retaliatory action in violation of plaintiff's rights. In addition, defendant states that plaintiff has not offered any evidence that defendant's actions caused plaintiff to lose his job. Defendant also argues that plaintiff is unable to establish the absence of any legitimate penological purpose to the adverse action taken against him. Finally, defendant contends that she is entitled to qualified immunity because her actions did not violate a clearly established constitutional right.
A. Summary Judgment Standards Under Rule 56
1. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure ( Fed.R.Civ.P.) 56(c) is met. "The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct., 2548, 2553 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S. Ct. at 2553.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S. Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255, 106 S. Ct. at 2513. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D.Cal. 1985),aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1356 (citation omitted).
On October 22, 2004, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Fed.R.Civ.P. See Rand v. Rowland, 154 F.3d 952, 960-1 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Defendant argues that plaintiff has not complied with the requirements for responding to a motion for summary judgment. Specifically, defendant complains that plaintiff failed to reproduce defendant's undisputed facts and respond accordingly. As a result, defendant contends that ascertaining the true facts as they apply to this motion is difficult. Defendant states that this alone supports granting the motion for summary judgment. The court disagrees. Dismissal on this basis is not warranted in this case. While it is true that plaintiff did not respond as required in the local rules, plaintiff demonstrated no prejudice as a result. Indeed, plaintiff's surrebuttal was well briefed. Furthermore, the court was able to distill the relevant facts from all of the documents in this case in order to issue its findings and recommendations.
2. Discussion
a. Facts
Defendant is the Supervisor of Academic Instruction at CSP-Sacramento. In this position, defendant is responsible for overseeing the libraries, academic instruction programs, recreation, and inmate television at CSP-Sacramento. At all times relevant to this suit, she occupied that position.
Plaintiff started working at the CSP-Sacramento B-facility law library in 1992. After beginning as a porter, a custodian at the library with other duties as assigned, plaintiff eventually became a library law clerk. Among his duties as a law clerk, plaintiff was responsible for providing requested legal materials and other assistance to law library users. Plaintiff signed numerous statements affirming that he was aware of his duties and the consequences for failing to meet performance expectations. The last of these statements was signed on July 1, 2000. Inmates are permitted to assist other inmates with legal matters. CAL. CODE REGS. tit.xv, § 3163. However, employees of the law library are prohibited from providing legal advice while at work. The reason for this prohibition is to reduce liability for CSP-Sacramento employees, limit the potential for disputes, and to ensure inmates have the time needed to perform their required duties. In addition, the prohibition prevents inmates from charging for services they are already obligated to perform.
On October 26, 2000, while at work, plaintiff was sent by his immediate supervisor to assist two inmates in lock down with a habeas corpus filing. Plaintiff prepared the required paperwork in pencil, giving it to Inmate Quintana to complete in pen and file on behalf of Inmate Lara. This process took approximately 20 minutes, after which plaintiff returned to the library to complete his workday.
Inmate Lara submitted his habeas filing to the prison law library for photocopying. This request was denied by the senior librarian in B-facility, Mr. McCarger, as the filing did not comply with prison requirements. The filing was returned to Inmate Lara along with the reason for its rejection.
Upon receipt of the rejection, plaintiff submitted a California Department of Corrections Form 602 (CDC 602) appealing the denial of photocopying services. This appeal, lodged on November 8, 2000, stated that plaintiff had prepared the habeas filing on behalf of Inmate Lara. Consequently, "as his attorney," plaintiff had a right to have copies made of whatever legal documents he deemed important for the prosecution of the habeas petition. (Pl.'s Decl. Supp. Opp. Mot., App. H.) According to plaintiff, the denial of photocopy services was an arbitrary abuse of power by Mr. McCarger in violation of state and federal law. Plaintiff wrote in his appeal that Mr. McCarger should "back off," and that plaintiff's job was to ensure that "inmates rights are not being violated in having access to the courts, and to assist them."Id.
On January 3, 2001, in preparation of his response to plaintiff's CDC 602, Mr. McCarger consulted with defendant and informed her that plaintiff had been told on numerous occasions that he was not permitted to provide legal advocacy while at work. On that same day, defendant reported plaintiff for a serious rules violation and prepared a notice of classification hearing. Both documents were served on plaintiff two weeks later. The order to appear before the classification committee was to consider removal from the work program and, if upheld, termination of plaintiff's employment as a clerk at the law library. As support for the classification hearing and removal, defendant attached a copy of a rules violation report (RVR).
In the RVR, defendant stated that plaintiff had compromised his position as a law clerk by giving legal advice. The rules violation cited performance as the basis for the offense. According to the RVR, plaintiff had been warned on numerous occasions that the giving of legal advice was against prison regulations. As a result of "disregard[ing] the terms of his employment in the library, [and] fail[ing] to follow direct orders," defendant suspended plaintiff from his position as a law clerk pending the classification hearing. Attached to the RVR upon its presentation to plaintiff was a copy the CDC 602 he filed contesting denial of the habeas photocopies.
Upon consideration of the RVR, a senior hearing officer at CSP-Sacramento found plaintiff guilty on January 25, 2001, of failing to meet job expectations, CAL. CODE REGS. tit.xv, § 3041(d), reducing the violation from a serious offense to an administrative violation. This finding was based on the fact that plaintiff admitted to helping an inmate prepare his habeas appeal. Additional support for the ruling was found in a statement made by defendant at the RVR hearing that plaintiff had been warned about providing legal assistance to other inmates while at work.
In his report, the hearing officer made several special notations. In particular, the hearing officer found that plaintiff did not violate any regulations by dispensing legal advice, as prison regulations permit inmates to assist one another with legal matters. Rather, the hearing officer found that plaintiff misused his work time by helping an inmate prepare an appeal during the time that he was supposed to be performing other assigned duties. The hearing officer specifically noted that plaintiff was not charged in the RVR for filing his CDC 602 and that any appeal in that case would proceed separately.
And proceed it did. On January 3, 2001, the CSP-Sacramento appeals coordinator rejected plaintiff's CDC 602 appeal for the first time. In his rejection, the appeals coordinator stated that the appeal was rejected because prison regulations state that an inmate may not prepare a CDC 602 appeal on behalf of another inmate. In this case, the rejected photocopy request was made by Inmate Lara; however, plaintiff filed the CDC 602 appealing that rejection. Plaintiff pursued a second appeal on January 5, 2001. The appeals coordinator rejected this appeal on the same grounds on February 2, 2005. Plaintiff filed a third appeal on February 19, 2001. This appeal was also rejected.
Upon completion of the several concurrent administrative proceedings, plaintiff waited for his review by the classification committee to determine whether he would retain his position as a clerk at the B-facility law library. This position was continued during an annual review on May 22, 2001. In that classification hearing, the committee noted plaintiff's RVR, yet determined that he should continue with his employment.
On June 4, 2001, plaintiff was removed from his position as a law clerk, along with all of his fellow employees in the B-facility law library, after weapons were found in the library. Plaintiff was put on administrative segregation during the investigation into the weapons incident. Plaintiff was ultimately not implicated in the weapons issue; however, plaintiff remained on administrative segregation because of other misconduct discovered during the course of the investigation. This additional matter concerned familiar relations with library staff, and was resolved on August 31, 2001, when the allegation against plaintiff was not substantiated. In spite of the unsubstantiated allegations, plaintiff did not resume employment in the law library.
b. Retaliation for Exercise of First Amendment Rights
The Fourteenth Amendment right of access to the courts survives confinement. Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Punishment administered against someone exercising their right to access to the courts may violate the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Actions that chill an inmate's right to file grievances are sufficient to raise a claim of retaliation.Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2004)
Prisoner's raising a claim of retaliation under 42 U.S.C. § 1983 must establish five elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see e.g. Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Defendant has failed in her motion to show that no material issue of fact exists on any of these elements and that she is entitled to judgment as a matter of law. Summary judgment is not appropriate.
i. Adverse Action
There is ample evidence that prison officials took adverse action against plaintiff. An RVR was filed by defendant against plaintiff in January 2001. In addition, defendant reported plaintiff to the classification committee and requested that he be removed from his position as a law clerk. Finally, plaintiff was ultimately placed in administrative segregation and lost his job in the law library as a result. While such actions may not appear severe, a particular sanction need not be great in order to find that rights have been violated. See Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992). There is sufficient evidence to conclude that defendant took adverse action against plaintiff.
ii. Retaliatory Action
A genuine issue of material fact exists with regards to the true reason why plaintiff suffered any adverse action. While defendant contends otherwise, plaintiff has put forward credible evidence that the timing of defendant's adverse action, the nature of its enforcement, and the motivation behind it, support an inference of retaliatory intent. There is considerable dispute between the parties on this issue that precludes summary judgment.
Plaintiff has offered multiple pieces of evidence to prove his contention of unlawful retaliation. Some inference could be drawn by a rational fact-finder that the timing of the RVR and plaintiff's subsequent removal from the law library was the result of his filing of the CDC 602. "Timing can properly be considered as circumstantial evidence of retaliatory intent."Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Defendant filed the RVR nearly six weeks after plaintiff made his CDC 602 appeal, and only after she became aware that it had been filed. Furthermore, according to the RVR, plaintiff had been warned on numerous occasions in his seven years in the law library about giving legal advice while on duty. However, in none of the prior occasions was plaintiff punished. Only after filing his grievance was an RVR completed. While the reasons for this RVR may be perfectly legitimate in light of the admissions contained in the CDC 602, its timing is suspect in light of other evidence in the record that such behavior had previously been tolerated by prison officials.
Along with the timing of the RVR, retaliatory intent is supported by additional evidence in the record. Confusion over the true nature of plaintiff's duties leaves open a reasonable inference of unlawful retaliation. Plaintiff's job description as a law clerk states that he will "give assistance to law library users." (Pl.'s Decl. Supp. Opp. Mot., App. E.) The hearing officer adjudicating plaintiff's RVR noted the tension between this description and the prison regulations that prohibit law clerks from providing legal advocacy while on duty. (Pl.'s Decl. Supp. Opp. Mot., App. I.) The very nature of plaintiff's confusing job description, along with his history of receiving only warnings when told on prior occasions about the regulation prohibiting advocacy, creates a genuine issue as to the motivation behind defendant's conduct that can only be decided by a finder of fact.
In addition, plaintiff asserted that he was told by personnel in the prison and employees in the law library that defendant intended to punish him for filing his grievance. (Pl.'s Decl. Supp. Opp. Mot. 26.) It is undisputed that defendant filed the classification report requesting that plaintiff be removed from his position in the law library. (Pl.'s Decl. Supp. Opp. Mot., App. I.) The classification report cites to the RVR that was also completed by defendant, and included the CDC 602 as an attachment. Id.
In spite of defendant's request to remove plaintiff from his position as a law clerk, the classification committee returned plaintiff to the library on May 22, 2001. (Pl.'s Decl. Supp. Opp. Mot., App. O.) Plaintiff presented evidence that defendant became upset upon learning that plaintiff had returned to the library and that he was subsequently ordered to return to his cell. (Pl.'s Decl. Supp. Opp. Mot. 26.) Two weeks later, plaintiff was removed and placed in administrative segregation, along with the rest of the staff as a result of weapons that were found in the library. (Def.'s Mot. Summ. J. App. H.) After it was determined that there was insufficient evidence to support any charge against plaintiff based on the weapons violation, (Pl.'s Decl. Supp. Opp. Mot., App. W.), plaintiff did not return to his job, but rather, remained on administrative segregation pending an investigation into familiar behavior with a staff member. Id. On August 31, 2001, this charge was also found to be not substantiated. Id.
In spite of these facts, plaintiff was not permitted to return to his former position in the law library. However, plaintiff has provided some evidence that fellow clerks were permitted to return to their former jobs. (Pl.'s Decl. Supp. Opp. Mot. 31.) In addition, there is some evidence of statements by prison personnel that defendant raised the unsubstantiated claim of familiar behavior. (Pl.'s Decl. Supp. Opp. Mot. 27.) Assuming all of these facts in favor of the nonmoving party, such allegations raise triable issues about the basis of plaintiff's RVR and the loss of his employment in the law library. See Bruce, 351 F.3d at 1289.
Defendant argues that the RVR and classification review were filed because of actions admitted to in the CDC 602, not for the act of filing the appeal. While such an argument may ultimately bear fruit at trial, a logical inference can be drawn from the near simultaneous nature of the reporting of the appeal to defendant and her filing of the RVR, that the two incidents are connected. The same inference can be drawn from plaintiff's return to the library and subsequent removal only two weeks later. The simple fact that defendant took action in a forum separate from that in which lodged his initial complaint does not insulate that action from scrutiny.
Defendant's contention that finding a retaliatory motive when admissions discovered in a CDC 602 appeal are used as the basis for an RVR will shield inmates from punishment is unavailing. The critical inquiry under the relevant analysis is the purpose for the action. Purpose is determined by the finder of fact based upon all of the evidence in the record, including the ultimate action taken, surrounding circumstances, and timing, not just the source of the information about the rules violation.
When viewed in the light most favorable to the non-moving party, plaintiff has offered proof to demonstrate an improper motive for the actions taken by defendant. The timing of the adverse actions, the confusing nature of plaintiff's job description, statements made by fellow employees and prison staff about the reasons for the disciplinary action, and subsequent hiring decisions in the law library, are all some proof of retaliation. In this case, plaintiff has provided sufficient evidence of the circumstances surrounding the adverse actions taken against him to show that a genuine issue of fact exists with regards to the motives behind defendant's actions.
iii. Prisoner's Protected Conduct
Defendant concedes that the filing of a prison grievance is a constitutionally protected activity. (Def.'s Mot. Summ. J. 7.)
iv. Chilled Exercise of First Amendment Rights
Plaintiff has filed numerous grievances since receiving his RVR and losing his job in the B-facility law library. According to defendant, plaintiff's vigorous utilization of his administrative grievance procedure is evidence that plaintiff' speech has not been chilled by any government conduct. This argument is without merit.
An inmate need not prove a total chilling of their protected speech in order to pursue a retaliation claim. Rhodes, 408 F.3d at 568. The proper test for determining whether official acts chill or silence speech is to ask whether "a person of ordinary firmness" would be intimidated from future First Amendment activities. Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). There is no requirement that one demonstrate that their speech was actually inhibited or suppressed. Id. Plaintiff has raised a credible allegation of a chilling effect as a result of defendant's conduct that is sufficient to create a genuine issue of material fact.
v. Legitimate Penological Goal
The prisoner bears the burden of pleading and proving the absence of legitimate penological goals for the complained of conduct. Pratt, 65 F.3d at 806. Plaintiff has done so in this case. There is sufficient evidence of improper motivation, questionable timing, and targeted action to support plaintiff's allegations regarding a lack of penological purpose.
Defendant argues that the need to comply with prison regulations and prison safety precipitated the RVR, administrative segregation, and loss of employment. In light of the evidence of retaliation offered by plaintiff, this argument is unavailing. "[P]rison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process when there is a genuine issue of material fact as the whether the action was taken in retaliation for the exercise of a constitutional right."Bruce, 351 F.3d at 1289. Such genuine issues exist in this case.
Defendant argues that plaintiff was placed in administrative segregation and removed from his job as a law clerk because of evidence unrelated to his CDC 602 appeal. While plaintiff may have ultimately ended up where he belonged, if he arrived there as a result of improper retaliation, it cannot be said that any legitimate penological goal is being served. Bruce 351 F.3d at 1289; see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) ("[P]laintiff has alleged that [prison officials' actions] were retaliatory and were arbitrary and capricious. He has thereby sufficiently alleged that the retaliatory acts were not a reasonable exercise of prison authority and that they did not serve any legitimate correctional goal.") While neutral reasons may support the adverse action taken against plaintiff, he has raised sufficient evidence of retaliation. Deducing the true motivation behind such actions is best left to the finder of fact.
c. Qualified Immunity
Defendant argues that she has qualified immunity from suit. This argument is without merit. Plaintiff has establish sufficient factual issues to preclude any application of qualified immunity.
Analyzing a claim of qualified immunity requires the court to determine what right has been violated, whether the right was clearly established so that a reasonable official would have been aware that her conduct violated constitutional bounds, and whether a reasonable public official could have believed that her conduct was lawful. See Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996). As shown above, plaintiff has demonstrated that material issues of fact exist with regards to the constitutionality of defendant's behavior. Plaintiff has put forth a valid claim that his First Amendment right was violated by defendant's retaliatory behavior.
Furthermore, defendant cannot argue that the right was not clearly established. For purposes of qualified immunity, the prohibition against retaliatory punishment is clearly established law in the Ninth Circuit. Hydrick v. Hunter, 449 F.3d 978, 994 (9th Cir. 2006); Pratt v. Rowland, 65 F.3d 802, 806 n. 4 (9th Cir. 1995).
Similarly, defendant has no basis upon which to argue that she believed her actions as alleged were lawful. A reasonable prison official can believe their adverse action is lawful if it was in support of a legitimate penological goal and the means were narrowly tailored to achieve that goal. Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). Legitimate penological goals advanced by defendant include protection from liability, the preservation of order within the prison, maintenance of internal discipline, and security. However, given the fact that plaintiff's right to be free from retaliation is clearly established, the immunity defense should ordinarily fail. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A reasonable public official should know the law governing their conduct. Id.
The facts in this case do not support a deviation from this general proposition. Plaintiff has presented evidence of a retaliatory motive for defendant's behavior. Couching that motive in otherwise legitimate penological goals does not infuse it with the protections of qualified immunity.
B. Conclusion
Plaintiff presented evidence that defendant retaliated against him because of his exercise of rights protected under the Constitution. Defendant counters that her actions were a valid application of her authority that was necessary to support the legitimate penological goals of CSP-Sacramento. There are genuine issues of material fact in this case that can only be resolved by a judge or jury. Defendants have not demonstrated that they are entitled to judgment as a matter of law.
Accordingly, IT IS HEREBY RECOMMENDED that defendants' summary judgment motion be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).