Price v. Cunningham et al

Filing 96

ORDER Adopting Findings and Recommendations 94 Regarding Defendants' Motion for Summary Judgment 72 , signed by District Judge Anthony W. Ishii on 9/27/13. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

FRED PRICE,

12
13
14

Plaintiff,
v.
S. R. CUNNINGHAM, et al.,

15

Defendants.

16
17

)
)
)
)
)
)
)
)
)
)

Case No.: 1:08-cv-00425-AWI-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
(ECF Nos. 72, 94)

Plaintiff Fred Price (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

18

this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 24, 2008.

19

On August 29, 2013, the Magistrate Judge issued Findings and Recommendations that the

20

motion for summary judgment filed by Defendants Cunningham and Mullins be granted in part and

21

denied in part. The Findings and Recommendations were served on the parties and contained notice

22

than any objections were to be filed within twenty-one days. (ECF No. 94.) On September 12, 2013,

23

Plaintiff filed objections to the findings and recommendations. (ECF No. 95.) No other objections

24

were filed.

25

Plaintiff objects to the Magistrate Judge’s recommendation that summary judgment be granted

26

in favor of Defendant Cunningham on Plaintiff’s claim of excessive force. In particular, Plaintiff

27

asserts that the Magistrate Judge erred in finding that a legitimate penological reason existed for

28
1

1

Defendant Cunningham to use pepper spray to break up an admittedly ongoing in-cell fight between

2

inmates. Plaintiff believes that the Magistrate Judge misunderstood the fact that Plaintiff had dropped

3

to his knees, faced the cell wall and was no longer a threat to his cellmate. Plaintiff’s assertion of fact

4

in no way alters the conclusion reached by the Magistrate Judge that Defendant Cunningham used

5

pepper spray in a good faith effort to maintain or restore discipline. The undisputed evidence

6

demonstrates that Defendant Cunningham utilized pepper spray after an altercation started between

7

Plaintiff and his cellmate and Plaintiff kicked his cellmate. Instead of raising a genuine dispute of

8

material fact, Plaintiff’s assertion that he was facing the cell wall when Defendant Cunningham

9

discharged his pepper spray into the cell supports the conclusion that the use of force was de minimis

10

and excluded from constitutional protection. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (Eighth

11

Amendment prohibition of cruel and unusual punishment excludes from constitutional recognition de

12

minimis uses of force).

13

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de

14

novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections,

15

the Court finds the findings and recommendations to be supported by the record and by proper

16

analysis.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1.

The findings and recommendations issued on August 29, 2013, are adopted in full;

19

2.

Defendants’ motion for summary judgment, filed on October 8, 2012, is GRANTED IN

20

PART and DENIED IN PART as follows:

21

a.

Summary judgment is GRANTED in favor of Defendant Cunningham and

22

Mullins on Plaintiff’s claim of excessive force in violation of the Eighth

23

Amendment;

24

b.

Summary judgment is DENIED on Plaintiff’s claim of deliberate indifference to

25

safety in violation of the Eighth Amendment against Defendants Cunningham

26

and Mullins.

27
28

c.

Summary judgment is GRANTED in favor of Defendant Cunningham on
Plaintiff’s claim of retaliation in violation of the First Amendment; and
2

d.

1

Defendants Cunningham and Mullins are DENIED qualified immunity on

2

Plaintiff’s claim of deliberate indifference to safety in violation of the Eighth

3

Amendment.
This action shall proceed on Plaintiff’s claim of deliberate indifference to safety in

4

3.

5

violation of the Eighth Amendment against Defendants Cunningham and Mullins; and

6

4.

7

matter consistent with this order.

This action is referred back to the Magistrate Judge for further proceedings in this

8
9
10

IT IS SO ORDERED.

11

Dated: September 27, 2013

12
13

SENIOR DISTRICT JUDGE
DEAC_Signature-END:

0m8i788

14

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3