Barnett v. Norman, et al.

Filing 211

THIRD AMENDED PRETRIAL ORDER signed by Magistrate Judge Barbara A. McAuliffe on 12/11/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TROAS V. BARNETT,

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CASE NO. 1:05-cv–01022-BAM PC

Plaintiff,
THIRD AMENDED PRETRIAL ORDER

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v.
MARTIN GAMBOA, ANGEL DURAN,
and MANUEL TORRES,

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Defendants.
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Plaintiff Troas V. Barnett is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants

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Martin Gamboa, Angel Duran and Manuel Torres for the use of excessive force in violation of the

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Eighth Amendment and is currently set for trial on January 22, 2012. In reviewing this action to

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prepare for trial, the Court finds that the parties neglected to address the separate claim raised in the

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third amended complaint that Defendant Torres failed to intervene while Plaintiff was being exposed

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to excessive force by Defendants Gamboa and Duran.

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This amended order shall issue to clarify that this action is proceeding on the third amended

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complaint, filed October 30, 2008, against Defendants Gamboa, Duran, and Torres for use of

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excessive force in violation of the Eighth Amendment, and Defendant Torres for failure to intervene

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in violation of the Eighth Amendment. Accordingly, the amended pretrial order issued October 29,

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2012, shall be amended at 9:7 as follows:

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VI.

Points of Law

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D.

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Prison officials are required “to take reasonable steps to protect inmates from physical

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abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other grounds by

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Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995)). A prison official may be held liable for

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failure to intervene to protect the inmate from harm. Robins v. Meecham, 60 F.3d 1436, 1442 (9th

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Cir. 1995). To prevail on his claim, the plaintiff must show that the defendants acted with deliberate

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indifference. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate

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indifference requires a showing that prison officials were aware of a “substantial risk of serious

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harm” to an inmate’s health or safety and that there was no “reasonable justification for the

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deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844, 114 S.

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Ct. 1970, 1979, 1982 (1994)). An officer can only be held liable for failing to intervene if he had

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a realistic opportunity to intercede and failed to do so. Cunningham v. Gates, 229 F.3d 1271, 1289-

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90 (9th Cir. 2000).

Eighth Amendment Failure to Intervene

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IT IS SO ORDERED.
Dated:
10c20k

December 11, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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