Opinion
CV-23-00001-TUC-RM-BGM
05-11-2023
Lance C. Wells, an individual, Plaintiff, v. Maplebear Inc. d/b/a Instacart Defendants.
REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. 19)
Honorable Bruce G. Macdonald, United States Magistrate Judge
Pending before the Court is Plaintiff's Motion for Summary Judgment (Doc. 19).The matter is fully briefed. See Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 23); see also Plaintiff's Reply to Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 24). Oral argument was held on April 12, 2023. Pursuant to Rules 72.1 and 72. of the Local Rules of Civil Procedure,2 this matter was referred to Magistrate Judge Bruce G. Macdonald for all pretrial proceedings and report and recommendation. See Order (Doc. 8). The Magistrate Judge recommends the District Judge deny Plaintiff's Motion for Summary Judgment (Doc. 19).
Plaintiff's first Motion for Summary Judgment (Doc. 15) was voluntarily withdrawn. See Plaintiff's Request to Withdraw Motion (Doc. 21); see also Minute Entry (Doc. 27) (withdrawing Plaintiff's Motion for Summary Judgment Doc. 15).
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
In addition to Plaintiff's pending Motion for Summary Judgment (Doc. 19), also pending before the Court is Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17). The Magistrate Judge has filed simultaneously with this Report and Recommendation addressing Plaintiff's Motion for Summary Judgment (Doc. 19), a Report and Recommendation recommending that the District Judge grant Defendant's Motion to Dismiss (Doc. 17). The Magistrate Judge recommends the District Judge deny Plaintiff's Motion for Summary Judgment (Doc. 19).
II. PARTIES' POSITIONS
Plaintiff's Motion for Summary Judgment (Doc. 19) submits Defendant's officers, directors, employees, and contractors are either 1) state actors; 2) potential state actors; or 3) unknowable as to such status, as referenced by Plaintiff in [Plaintiff's] Response (Doc. 18) to Defendant's Motion to Dismiss Complaint (Doc. 17), which states therein, these facts, “are verifiable as publicly available information and are therefore beyond reasonable dispute.” (Doc. 19 at 1-2.) Plaintiff moves for summary judgment “on the entirety of his Amended Complaint under 42 U.S.C. § 1983.” (Doc. 19 at 1.) Plaintiff submits, “[u]nder 42 U.S.C. § 1983, the speech-oriented provision (Provisions 5, 6, and 7) of the Agreement [Settlement Agreement] entered into between Plaintiff and Defendant on November 29, 2022, must be declared invalid and unenforceable as a matter of law, because those provisions effect prior restraint on Plaintiff's First Amendment right to the freedom of speech.” (Doc. 19 at 2). Plaintiff further submits, “Section 1983 additionally authorizes Plaintiff to enforce his civil rights against Defendant's discriminatory policies, practices, and public statements that violate the Civil Rights Act of 1964, as those actions were and are committed by state actor(s) and/or under color of state law.” (Doc. 19 at 2.) Plaintiff seeks an injunction against Defendant's continued implementation of such policies, practices, and public statements and submits he is entitled to a monetary award equal to the fees and costs sought by Defendant. Id.
Defendant counters Plaintiff's summary judgment motion (Doc. 19) raises unpled allegations and theories, relies on inadmissible evidence contained in Plaintiff's Statement of Facts (Doc. 20), and submits “there has been no Rule 16 Case Management Conference and discovery has not commenced”; and lastly, alleges that Plaintiff's summary judgment motion (Doc. 19), is premature. (Doc. 23.) Defendant requests more time to conduct discovery, should the Court consider Plaintiff's summary judgment motion. Id.
Based on the parties' filings, neither party disputes a provision contained within the parties' Settlement Agreement, which states in pertinent part, “If either Party breaches this Agreement, or any dispute arises out of or relating to this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and costs.” See Plaintiff's Motion for Summary Judgment (Doc. 19 at 2) (“Plaintiff requests that the Court honor Defendant's citation of the Agreement by granting Plaintiff a monetary award equal to the fees and costs sought by Defendant estimated to total approximately $25,000 based on research of corporate attorneys' salaries in Arizona.”); see also Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 23 at 8).
III. LAW
A. Jurisdiction
Under 28 U.S.C. § 1331, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. This federal question jurisdiction, however, is limited, in pertinent part:
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[,] which is not to be expanded by judicial decree[.] It is to be presumed that a cause lies outside this limited jurisdiction[,] and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994).
B. Federal Rules of Civil Procedure, Rule 56
A party seeking to recover upon a claim may, “file a motion for summary judgment at any time until 30 days after the close of all discovery,” under Federal Rules of Civil Procedure (Fed. R. Civ. P.), Rule 56. 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 Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986)(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed.R.Civ.P. 56 (d). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).Belgau v. Inslee, 359 F.Supp.3d 1000, 1009-10 (W.D. Wash. 2019), affd, 975 F.3d 940 (9th Cir. 2020).
1. Determination of Whether Private Entity is Acting Under Color of State Law
The court begins with the presumption that conduct by private actors is not taken under color of state law[.] Thus, the plaintiff bears the burden of establishing that a nominally private entity was a state actor. (citation omitted). The basic question under the color of state law inquiry is whether the necessary “close nexus” between the state, the private entity, and the challenged conduct exists[.]Webber v. First Student, Inc., 928 F.Supp.2d 1244, 1255 (D. Or. 2013). “[T]he fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor-unless the private entity is performing a traditional, exclusive public function.” Pasadena Republican Club v. W. Just. Ctr., 985 F.3d 1161, 1172 (9th Cir.), cert. denied, 211 L.Ed.2d 178, 142 S.Ct. 337 (2021).
2. State Action Tests
The Supreme Court has developed four different tests that “aid us in identifying state action: ‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus[.]'” The “[satisfaction of any one test is sufficient to find state action,” but “[a]t bottom, the inquiry is always whether the defendant has exercised power possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 747-48 (internal citations omitted).Pasadena, 985 F.3d at 1167.
3. Mixed Question of Law and Fact
The extent of the state involvement in the action presents a question of fact. Lopez v. Dep't. of Health Servs., 939 F.2d 881, 883 (9th Cir.1991). However, the ultimate determination of whether there is state action presents a question of law for the court. See Blum v. Yaretsky, 457 U.S. 991, 997, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (describing “whether there is state action” as one of “several issues of law” for the court); Han v. Dept. of Justice, 824 F.Supp. 1480, 1492 (9th Cir.1993) (evidence insufficient to show state action as a matter of law); Spreadbury v. Bitterroot Pub. Library, No CV 11-64-M-DWM-JCL, 2011 WL 4499043, *5-7 (D.Mont. July 21, 2011) (same); Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 354 (4th Cir.2003) (“[T]he ultimate resolution of whether an actor was ... functioning under color of law is a question of law for the court.” (quoting Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n. 7 (4th Cir.2000)).Webber v. First Student, Inc., 928 F.Supp.2d 1244, 1255 (D. Or. 2013). “In a § 1983 action, plaintiffs must specifically allege: (1) defendants were acting under color of state law; (2) plaintiffs were deprived of rights, privileges, or immunities secured by the constitution or laws of the United States; and (3) defendants' conduct was the proximate cause of plaintiffs' deprivation of rights. Section 1983 does not create substantive rights; it is merely a means of seeking redress for deprivations of other federal rights.” Han v. Dep't of Just., 824 F.Supp. 1480, 1492 (D. Haw. 1993), affd sub nom. Han v. U.S. Dep't of Just., 45 F.3d 333 (9th Cir. 1995) citing Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.).
IV. ISSUE
Whether Plaintiff's Motion for Summary Judgment (Doc. 19) is procedurally barred, and or substantively, insufficient.
V. ANALYSIS
A. Procedural Bar
Plaintiff requests “summary judgment on the entirety of his Amended Complaint under 42 U.S.C. § 1983.” Plaintiff argues that under 42 U.S.C. § 1983, the “speech-oriented provisions” of the parties' settlement agreement are invalid and unenforceable because these provisions violate his First Amendment right to free speech; and Section 1983 authorizes him to enforce his civil rights against Instacart's alleged discriminatory policies, practices, and public statements “that violate the Civil Rights Act of 1964, as those actions were and are committed by state actor(s) and/or under color of state law.” (Doc. 19 at 2.) Plaintiff requests further relief pursuant to 42 U.S.C. § 1988. Id.
Under Fed.R.Civ.P. Rule 56(a), “[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.”
As argued by Defendant, and the Court agrees, Plaintiff's claims as alleged in the Amended Complaint are limited to:
1) a First Amendment violation of Right to Free Speech, as set forth in the Complaint (Doc. 1); and
2) violation(s) of the Civil Rights Act of 1964, as set forth in the Amendment to Pleading (Doc. 14)
“Slinking in a new claim in his summary judgment motion cannot serve as a substitute to amending his complaint.” Wolf v. Univ. Pro. & Tech. Emps., Commc'ns Workers of Am. Loc. 9119, No. C 19-02881 WHA, 2020 WL 6342934, at *4 (N.D. Cal. Oct. 29, 2020), affd sub nom. Wolf v. Shaw, No. 20-17333, 2021 WL 4994888 (9th Cir. Sept. 16, 2021). The court in Wolf cited additional support for preclusion of new claims at the summary judgment stage of proceedings, stating in pertinent part, “[n]either Adler, nor the other authorities Wolf cites to stand for the proposition that a plaintiff can slink in a new claim at summary judgment. Instead, more relevant authorities from this circuit counsel against it. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1293-93 (9th Cir. 2000) (“the [plaintiffs] cannot turn around and surprise the [defendant] at the summary judgment stage on the theory that an allegation of disparate treatment in the complaint is sufficient to encompass a disparate impact theory of liability.”); see also Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (holding the same in the context of the ADA).
Plaintiff's newly alleged claim(s)-under 42 U.S.C. § 1983, raised for the first time in Plaintiff's Response to Defendant's Motion to Dismiss (Doc. 18); and under 42 U.S.C. § 1988, raised for the first time in Plaintiff's Motion for Summary Judgment (Doc. 19), regarding damages-were not raised in Plaintiff's Amended Complaint (Docs. 1 and 14), and are, therefore, not viable grounds for Plaintiff's motion for summary judgment under Rule 56(a). The procedural bar to Plaintiff's summary judgment motion is further supported by the Report and Recommendation addressing Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17), wherein the Court recommends granting Defendant's Motion to Dismiss (Doc. 17).
Accordingly, the Magistrate Judge recommends the District Judge deny Plaintiff's Motion for Summary Judgment (Doc. 19), on procedural grounds.
B. Substantively Insufficient
1. 42 U.S.C. § 1983 Not Argued in Plaintiff's Amended Complaint
Assuming arguendo the Court reached the merits of Plaintiff's Motion for Summary Judgment (Doc. 19), which the Court declines to reach, the Magistrate Judge recommends denying Plaintiff's Motion. Plaintiff's Motion is framed as though a claim under 42 U.S.C. § 1983 was included in Plaintiff's Amended Complaint (Docs. 1, 14); however, Plaintiff's claim under 42 U.S.C. § 1983, was not identified until Plaintiff's Response to Defendant's Motion to Dismiss (Doc. 18.)
Plaintiff's three-page Motion for Summary Judgment which cites to Federal Rule of Civil Procedure 56(a) includes only conclusory allegations, e.g., in pertinent part, regarding the state-actor requirement of a claim under 42 U.S.C. § 1983:
Plaintiff maintains that his several demonstrations showing that Defendant (“Instacart”) and Defendant's officers, directors, employees, and contractors are either 1) state actors; 2) potential state actors; or 3) unknowable as to such status, as presented in Response to Defendant's Motion to Dismiss Complaint and to Compel Arbitration, are verifiable as publicly available information and are therefore beyond reasonable dispute.(Doc. 19 at 1-2) (emphasis added).
First, Plaintiff is assuming the Court will accept Plaintiff's untimely identification of a claim under 42 U.S.C. § 1983, which the Court declines to do. Secondly, the Court finds, Plaintiff's conclusory statement above, on its face, presents a question of fact, as Plaintiff has listed three options, including an option of “unknowable as to such status,” which, alone, raises a question of fact, regardless of the content or admissibility of the proposed evidence attached to the Motion, or lack of an affidavit attesting to the authenticity of such proposed evidence.
A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” and identifying the parts of the record, such as depositions, documents, affidavits, or declarations, demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102-1103 (9th Cir. 2000).
In his Motion, Plaintiff does not argue there is no genuine issue of material fact, despite his use of the conclusory phrase “beyond reasonable dispute.” Neither Plaintiff's Motion for Summary Judgment (Doc. 19), Statement of Facts (Doc. 20), or Response to Defendant's Motion to Dismiss (Doc. 18), contain an affidavit, or declaration, attesting under penalty of perjury that the proposed documents for the Court's consideration, i.e., “his several demonstrations,” are what Plaintiff says they are, i.e., Plaintiff has failed to “authenticate” his proposed evidence under Fed. R. Evid., Rule 901 (“to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is” with evidence that satisfies this requirement such as “[t]estimony that an item is what it is claimed to be[,]” i.e., an affidavit or declaration, attested to under penalty of perjury).
The Court notes, here, that authentication does not always require affidavits when moving for summary judgment, as set forth in the seminal case of Celotex Corp. v. Catrett,
But as we have already explained, a motion for summary judgment may be made pursuant to Rule 56 “with or without supporting affidavits.” In cases like the instant one, where 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.” Such a motion, whether or not accompanied by affidavits, will be “made and supported as provided in this rule,” and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.”Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
Here, however, at this early stage in the litigation, Plaintiff has failed to include with his summary judgment motion: affidavits or declarations (that set out facts that would be admissible in evidence); depositions; answer to interrogatories; and or admissions on file. At the summary judgment stage, under Fed. R. Civ. P., Rule 56-in determining whether there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law-the Court is limited in scope to considering “only the cited materials,” and may consider “other materials in the record.”
VI. PLAINTIFF'S STATEMENT OF FACTS
Plaintiff's Statement of Facts to Accompany Motion for Summary Judgment (Doc. 20), “presents ten of said facts to support his claim(s), in the order in which they appear in his Response [Defendant's Response to Plaintiff's Motion to Dismiss (Doc. 18)].” (Doc. 20 at 1.) Plaintiff's attached documents to his Statement of Facts include the following:
The Court notes, here, however, that Plaintiff's Statements of Facts (Doc. 20), as it appears in the record, is missing page two.
• II.A - The Instacart Health Policy Agenda (Doc. 20-1 at 1) (Doc. 18 at 6).
• II.B - Fact Sheet dated September 28, 2022. (Doc. 20-1 at 26) (Doc. 18 at 8).
• II.C - Twitter dated March 15, 2022 (Doc. 20-1 at 30) (Doc. 18 at 8).
• II.D - Research Brief: Online Grocery Shopping Study dated August 3, 2022) (Doc. 20-1 at 32) (Doc. 18 at 9).
• II.E - #AidRefugees: Heeding the President's Call to Take Action dated October 6, 2015 (Doc. 20-1 at 34) (Doc. 18 at 10).
• II.F - Tweet dated December 17, 2022 (Doc. 20-1 at 36) (Doc. 18 at 11).
• II.G - Human Resources Officer for Instacart (no date) (Doc. 20-1 at 37) (Doc. 18 at 11).
• II.H - Home Care Assistance President and CEO (no date) (Doc. 20-1 at 39) (Doc. 18 at 12).
• II.I - Diversity, Equity, and Belonging efforts dated April 21, 2021 (Doc. 20-1 at 40) (Doc. 18 at 13-14).
• II.J - Senior Director of Diversity, Equity and Belonging dated June 23, 2021(Doc. 20-1 at 41) (Doc. 18 at 14).
In opposition, Defendant contends Plaintiff's Statement of Facts relies on inadmissible evidence, and cites to Canada v. Blain, for the position that unauthenticated documents cannot be considered on a motion for summary judgment. Canada v. Blain's Helicopter's, Inc., 831 F.2d 920, 925 (9th Cir. 1987).
The Ninth Circuit in Canada v. Blain, provides in pertinent part:
It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment. In order to be considered by the court, “documents must be authenticated by and attached to an affidavit that meets the requirements of [Fed.R.Civ.P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.” 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2722 at 58-60 (2d ed. 1983) (footnotes omitted). This court has consistently held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment. Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir.1976); United States v. Dibble, 429 F.2d 598, 601-02 (9th Cir.1970). We hold that such documents may not be
relied upon to defeat a motion for summary judgment.Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987).
Under 28 U.S.C. § 1746:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.28 U.S.C.A. § 1746.
According to Federal Rules of Evidence, Rule 901, in pertinent part:
a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
b) Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement:
1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.Fed. R. Evid., Rule 901.
Plaintiff has failed to establish the absence of disputed material facts, particularly, regarding the state-actor requirement of his newly alleged 42 U.S.C. § 1983 claims. Instead, Plaintiff's Motion jumps from the conclusory statement “unknowable as to such status,” to his request that the Court “declar[e] [as] invalid and unenforceable as a matter of law” provisions 5, 6, and 7 of the parties' settlement agreement. (Doc. 19 at 2.) Even if the Court were to interpret Plaintiff's summary judgment motion without the 42 U.S.C. § 1983 claim(s), and address the claims as set forth in the Amended Complaint, Plaintiff's argument merely concludes “those provisions effect [a] prior restraint on Plaintiff's First Amendment right to freedom of speech” and requests that the Court enforcement “his civil rights against Defendant's discriminatory policies, practices, and public statements that violate the Civil Rights Act of 1964” without any reference to or citation of facts in the record to support the claims. Accordingly, if the Court were to reach the substantive grounds for Plaintiff's Motion, which the Court has declined to do so, the Court would recommend the District Court deny Plaintiff's Motion for Summary Judgment (Doc. 19) on substantive grounds, as Plaintiff has not carried the evidentiary burden to demonstrate there is no genuine dispute as to any material fact.
VII. CONCLUSION
Plaintiff's Motion for Summary Judgement (Doc. 19) raises claims that were not set forth in Plaintiff's Amended Complaint (Doc. 1, 14), i.e., claims under 42 U.S.C. § 1983, in addition to Plaintiff's claims for damages under 42 U.S.C. § 1988, and is therefore, procedurally barred, and should be denied. Additionally, assuming arguendo, the Court were to reach the merits of Plaintiff's Motion, Plaintiff did not meet his initial burden under Rule 56(a) to inform the District Court of any viable basis for granting the Motion. In other words, there is nothing from which the Court could conclude that Plaintiff is entitled to summary judgment or summary adjudication in his favor.
Under these circumstances, it is RECOMMENDED that the District Court DENY Plaintiff's Motion for Summary Judgment (Doc. 19).
VIII. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter the following:
IT IS ORDERED DENYING Plaintiff's Motion for Summary Judgment (Doc. 19), based on procedural grounds, as the claims raised in Plaintiff's Motion for Summary Judgment, include grounds not alleged in Plaintiff's Amended Complaint (Docs. 1, 14).
Alternatively, IT IS FURTHER ORDERED DENYING Plaintiff's Motion for Summary Judgment (Doc. 19), based on substantive grounds, as Plaintiff has failed to carry the burden of production, as discussed herein, supra.
In addition, pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-23-00001-TUC-RM.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.