Exmundo v. Scribner et al
Filing
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FINDINGS and RECOMMENDATIONS to Deny Defendants' 64 Motion for Summary Judgment; Objections Due Within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 12/17/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 1/21/2013. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EMELITO EXMUNDO,
CASE NO. 1:06-cv-00205-AWI-GBC (PC)
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Plaintiff,
FINDINGS AND RECOMMENDATIONS TO
DENY DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
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v.
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A.K. SCRIBNER, et al.,
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Doc. 64
Defendants.
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/ OBJECTIONS DUE WITHIN THIRTY DAYS
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Findings and Recommendations
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I. Procedural Background and Woods v. Carey
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On February 23, 2006, Plaintiff Emelito Exmundo (“Plaintiff”), a state prisoner proceeding
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pro se and in forma pauperis, filed this civil rights action, pursuant to 42 U.S.C. § 1983. Doc. 1. On
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October 8, 2010, the Court screened Plaintiff’s second amended complaint and issued an order
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requiring Plaintiff to file an amended complaint or notify the Court of willingness to proceed on
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cognizable claims against Defendants Bell and Johnson for Eighth Amendment excessive force and
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against Defendant Bell for First Amendment retaliation. Doc. 35. On November 3, 2010, Plaintiff
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notified the Court of his willingness to proceed on the cognizable claims, and on November 15,
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2010, the Court dismissed all remaining claims and defendants. Docs. 37, 38.
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On December 13, 2010, the Court issued a second informational order, advising Plaintiff that
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Defendants may file a motion for summary judgment and how Plaintiff must oppose the motion in
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order to avoid dismissal, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 41.
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On June 21, 2012, Defendants filed a motion for summary judgment. Doc. 64. On July 6,
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2012, the Ninth Circuit found that the notice and warning of requirements for opposing a defendant’s
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motion for summary judgment should be issued contemporaneously when a defendant files a motion
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for summary judgment, as opposed to a year or more in advance. Woods v. Carey, 684 F.3d 934, 936
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(9th Cir. 2012). On July 18, 2012, the Court issued an amended second informational order to
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Plaintiff, in accordance with Woods. Doc. 65.
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On September 28, 2012, Plaintiff filed an opposition to the motion for summary judgment,
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declaration, and statement of disputed facts. Doc. 69. On September 17, 2012, Defendants filed a
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reply to Plaintiff’s opposition. Doc. 71.
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II. Legal Standard for Summary Judgment
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Summary judgment is appropriate when it is demonstrated that there exists no genuine issue
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as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(a). Under summary judgment practice, the moving party always bears the initial
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responsibility of informing the district court of the basis for its motion, and identifying those portions
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of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.
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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the
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burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made
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in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’”
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Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party
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to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus.
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Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this
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factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to
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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in
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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586
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n.11. In resolving the summary judgment motion, the Court examines the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ.
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P. 56(c). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply
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show that there is some metaphysical doubt as to the material facts. Where the record taken as a
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whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine
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issue for trial.’” Matsushita, 475 U.S. at 587.
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III. Undisputed Facts, Plaintiff’s Declaration, and Medical Records in Opposition to
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Motion for Summary Judgment
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Since 1992, Plaintiff has been an inmate in the custody of the California Department of
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Corrections and Rehabilitation (“CDCR”). Pl. Opp’n at 16, Decl. ¶ 1, Doc. 69. From 2003 to 2007,
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Plaintiff was in custody at California State Prison-Corcoran (“CSP-Corcoran”). Pl. Opp’n at 16,
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Decl. ¶ 2. During February 2005 to October 2005, Defendants Bell and Johnson were correctional
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officers at CSP-Corcoran. Defs. UF ¶ 1, Doc. 64-2.
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From February 8, 2006, to November 21, 2007, Plaintiff filed nineteen grievances concerning
conditions at CSP-Corcoran. Defs. UF ¶ 22.
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In February 2005, Defendant Bell threatened and frightened Plaintiff not to answer the phone
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interview by Lieutenant Hill for a grievance Plaintiff filed. Pl. Decl. ¶ 5. After the interview and
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Plaintiff filed a grievance, Defendant Bell harassed Plaintiff, spit on his food, threatened him, and
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stole his food. Id. ¶ 7.
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On October 5, 2005, correctional officer Lopez was ready to handcuff Plaintiff and escort
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him to the shower, when Defendant Bell told him to remove the handcuffs and that Plaintiff is not
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going to the shower. Id. ¶ 8. When Lopez left, Defendant Bell came back to Plaintiff’s cell door with
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a trash can and threatened him that he will search and trash his cell and take property if he takes a
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shower. Id. ¶ 9. When Lopez returned and asked if Plaintiff wanted a shower, Plaintiff said yes and
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Lopez escorted him to the shower. Id. ¶ 12.
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When Plaintiff was finished showering and drying himself off, he saw Defendant Bell
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searching his cell, throwing some things and his lunch bag in the trash, and sneering at him. Id. ¶ 13.
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Plaintiff just smiled and shrugged his shoulders. Id. ¶ 14. Defendant came to the shower door, he
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smelled strongly with alcohol and he was red-faced. Id. ¶ 15. Plaintiff asked him if he was drunk.
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Id. ¶ 16. Defendant Bell screamed that Plaintiff was “holding the showers hostage.” Id. ¶ 17. Plaintiff
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said he wanted to talk to the sergeant. Id. ¶ 18. Defendant Bell refused to call the sergeant because
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he did not want the sergeant to know he threw away Plaintiff’s lunch and that he was drunk. Id. ¶
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19.
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Defendant Bell refused to handcuff Plaintiff, but when another correctional officer [sic]
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Defendant Bell told Plaintiff to turn around and handcuffed him. Id. ¶ 22. Defendant Bell handcuffed
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Plaintiff with his back to the officers, according to procedure. Defs. UF ¶ 5. Defendant Bell
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handcuffed him very tightly so that it hurt. Pl. Decl. ¶ 22.
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There was water on the floor, so Plaintiff had to turn his head to look down and see where
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he was walking. Id. ¶ 23. Prison policy forbids inmates in ad-seg and the Security Housing Unit
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(SHU) from turning around and facing the officers without permission during an escort. Doing so
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is an act of aggression and the officers may use reasonable force to control the inmate. Defs. UF ¶
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10. Plaintiff never faced Defendants, said anything, or acted in any way that can be construed as an
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act of aggression. Pl. Decl. ¶ 26.
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Defendants Bell and Johnson were twisting his arms and wrist so that it felt like his shoulder
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sockets were being pulled out. Id. ¶ 24. Once he got to his cell, Defendants Bell and Johnson kicked
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Plaintiff at [sic] the back, pulled him out of his cell, lifted him off the floor, and slammed him
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backwards on the cement floor. Id. ¶ 25. Plaintiff hit his head and lost consciousness. Id. When
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Plaintiff regained consciousness, he could not breathe because someone was choking him. Id. ¶ 27.
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Plaintiff felt someone punching him and kicking him and felt both their knees pressing his back. Id.
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¶ 28. Plaintiff screamed at them that he was hurting very bad but instead someone dropped a knee
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to his spine and he felt a crack. Id. ¶ 28. Plaintiff did not resist in any way because both Defendants
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weighed six hundred pounds together and were kneeling on his back. Id. ¶ 29. Defendant [Plaintiff
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does not say which] put on the iron chain and cut his foot. Id. Both Defendants dragged him like an
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animal and threw him inside a steel cage. Id. ¶ 30. Defendant Johnson spit at him and laughed. Id.
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¶ 31.
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Defendants Bell and Johnson then escorted Plaintiff to see a licensed vocational nurse (LVN),
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who medically cleared him to return to his cell. Defs. UF ¶ 14. The LVN noted a scratch on the back
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of Plaintiff’s left knee and right hip, pain in his right wrist, and a cut on his right foot. Id. ¶ 15.
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Defendant Bell used excessive force against Plaintiff because of the phone interview and that
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he refused to withdraw the grievance. Pl. Decl. ¶ 6. Plaintiff has personally observed or seen
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Defendants Bell and Johnson use excessive force against other inmates. Id. ¶ 4.
On October 5, 2005, Plaintiff was found guilty of a CDC 115-Rule Violation Report for
resisting staff resulting in the use of force. Defs. UF ¶ 20.
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Plaintiff attached medical records to his opposition. Pl. Opp’n at 38-44, Ex. B, Doc. 69. On
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December 21, 2005, Plaintiff had an x-ray of his right shoulder and right scapula, which showed no
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evidence of fracture or dislocation and minimal arthritic changes. Id. at 44.On April 6, 2006, Plaintiff
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had an MRI of the lumbosacral spine, which showed degenerative disc disease, spondylolysis at L5,
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disc bulge at L3/L4, and spondylolisthesis at L5-S1. Id. at 41-42. On November 20, 2006, Plaintiff
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had an x-ray of the lumbosacral spine, which showed degenerative disc disease, spondylolysis at L5,
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and spondylolisthesis at L5-S1. Id. at 43. On December 16, 2008, Plaintiff had an examination and
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review of an MRI from May 2007, which showed degenerative disc disease at three levels and that
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Plaintiff may be a candidate for back surgery. Id. at 39-40.
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IV. Analysis
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A. Legal Standard for Plaintiff’s Claims
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1. First Amendment Retaliation
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“Within the prison context, a viable claim of First Amendment retaliation entails five basic
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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because
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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his
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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262,
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1269 (9th Cir. 2009). The adverse action need not be an independent constitutional violation. Pratt
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v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of harm can be an adverse action
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. . .” Brodheim, 584 F.3d at 1270. Plaintiff must allege a causal connection between the adverse
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action and the protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
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2. Eighth Amendment Excessive Force
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“[W]henever prison officials stand accused of using excessive physical force in violation of
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the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied
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in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
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Hudson v. McMillian, 503 U.S. 1, 7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 (1986);
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Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). In determining whether the use of force
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was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the
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relationship between that need and the amount of force used, the threat reasonably perceived by the
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responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503
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U.S. at 7; Martinez, 323 F.3d at 1184.
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The malicious and sadistic use of force to cause harm always violates contemporary standards
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of decency, regardless of whether or not significant injury is evident. Hudson, 503 U.S. at 9; see also
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Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard
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examines de minimis uses of force, not de minimis injuries)). However, not “every malevolent touch
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by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth
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Amendment’s prohibition of cruel and unusual punishments necessarily excludes from constitutional
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recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant
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to the conscience of mankind.” Id. at 9-10. “The absence of serious injury is . . . relevant to the
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Eighth Amendment inquiry, but does not end it.” Id. at 7.
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B. Genuine Dispute of Material Fact
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Defendant Bell contends that he did not deny food to Plaintiff, spit on his food, or take any
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action against Plaintiff because he had filed a grievance. Defs. Mot. Summ. J. Bell Decl. ¶ 19, Doc.
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64-3. In Plaintiff’s declaration, he states Defendant Bell threatened, frightened, and harassed
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Plaintiff, spit on his food, stole his food, and used excessive force because Plaintiff filed a grievance.
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Pl. Decl. ¶¶ 5-7, Doc. 69.
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Defendants Bell and Johnson contend that they did not strike Plaintiff with any blows, kick
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him, or use any weapons on him. Defs. Mot. Summ. J. Bell Decl. ¶ 17, Johnson Decl. ¶ 16, Doc. 64-
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3. Bell and Johnson contend that they used the minimum force that they believed was necessary to
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bring Plaintiff under control. Bell Decl. ¶ 18; Johnson Decl. ¶ 17. In Plaintiff’s declaration, he states
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Defendants Bell and Johnson were twisting his arms and wrist so that it felt like his shoulder sockets
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were being pulled out. Pl. Decl. ¶ 24. Once he got to his cell, Defendants Bell and Johnson kicked
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Plaintiff at [sic] the back, pulled him out of his cell, lifted him off the floor, and slammed him
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backwards on the cement floor. Id. ¶ 25. Plaintiff hit his head and lost consciousness. Id. When
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Plaintiff regained consciousness, he could not breathe because someone was choking him. Id. ¶ 27.
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Plaintiff felt someone punching him and kicking him and felt both their knees pressing his back. Id.
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¶ 28. Plaintiff screamed at them that he was hurting very bad but instead someone dropped a knee
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to his spine and he felt a crack. Id. ¶ 28. Plaintiff did not resist in any way because both Defendants
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weighed six hundred pounds together and were kneeling on his back. Id. ¶ 29. Defendant [Plaintiff
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does not say which] put on the iron chain and cut his foot. Id. Both Defendants dragged him like an
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animal and threw him inside a steel cage. Id. ¶ 30. Defendant Johnson spit at him and laughed. Id.
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¶ 31.
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From Plaintiff’s declaration, the Court cannot find that there is no genuine dispute of material
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fact as to whether Defendant Bell retaliated against Plaintiff for filing a grievance or whether
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Defendants Bell and Johnson used excessive force on Plaintiff. Therefore, Defendants’ motion for
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summary judgment should be denied.
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C. Qualified Immunity
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Defendants contend that they are entitled to qualified immunity. Def. Mot. Summ. J. at 7,
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Doc. 64-1. Government officials enjoy qualified immunity from civil damages unless their conduct
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violates “clearly established statutory or constitutional rights of which a reasonable person would
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have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In ruling upon the issue of qualified
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immunity, one inquiry is whether, taken in the light most favorable to the party asserting the injury,
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the facts alleged show the defendant’s conduct violated a constitutional right. Saucier v. Katz, 533
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U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 227 (2009) (“Saucier
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procedure should not be regarded as an inflexible requirement”). The other inquiry is whether the
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right was clearly established. Saucier, 533 U.S. at 201. The inquiry “must be undertaken in light of
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the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official
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is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence
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more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official
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would understand that what he is doing violates that right.” Id. at 202. In resolving these issues, the
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court must view the evidence in the light most favorable to plaintiff and resolve all material factual
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disputes in favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified
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immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley
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v. Briggs, 475 U.S. 335, 341 (1986).
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Here, based Plaintiff’s declaration, Defendants are not entitled to qualified immunity.
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Drawing all reasonable inferences in favor of Plaintiff as the non-moving party, there is a genuine
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dispute of material fact as to Plaintiff’s claims for retaliation and excessive force. Essentially, the
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parties dispute whether Defendant Bell did any acts in retaliation for Plaintiff’s grievance; whether
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Plaintiff disobeyed an order; the extent of the force used by Defendants on Plaintiff; and whether the
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force used was reasonable and necessary. Therefore, when construing the facts alleged in the light
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most favorable to Plaintiff, the undersigned cannot recommend finding qualified immunity. Harlow,
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457 U.S. at 818; Saucier, 533 U.S. at 201.
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V. Conclusion and Recommendation
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Based on the foregoing, it is HEREBY RECOMMENDED that Defendant’s motion for
summary judgment be DENIED.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57
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(9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
7j8cce
December 17, 2012
UNITED STATES MAGISTRATE JUDGE
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