Bosley v. Valasco et al

Filing 71

ORDER DENYING Defendant's 48 Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 7/19/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT DEWAYNE BOSLEY, JR.,

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Plaintiff,

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v.

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Case No. 1:14-cv-00049-MJS (PC)
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(ECF No. 48)

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M. VELASCO, et al.,

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Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s Second Amended
Complaint charging Defendant Velasco with excessive force in violation of the
Fourteenth Amendment. Pending before the Court is Defendant’s motion for summary
judgment, which Plaintiff opposes.1 (ECF Nos. 48, 53.) For the reasons set forth here,
Defendant’s motion will be denied.2

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On May 23, 2016, Plaintiff filed an untimely 122-page document titled “Declaration of Robert Dewayne Bosley Jr.

26 in Support of Denial to Defendant’s Motion for Summary Judgment.” (ECF No. 68.) Defendant objects to this
declaration and the attachments on multiple grounds. This declaration was not considered by the undersigned in

27 rendering this decision. Accordingly, Defendant’s objections need not and will not be addressed.
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This matter is before the undersigned pursuant to the consent of the parties. (ECF Nos. 4, 26.)

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I.

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PLAINTIFF’S CORE ALLEGATIONS
Plaintiff alleges that when he was housed at the Fresno County Jail as a pretrial

detainee, he was charged by non-party Officers Sandoval and Rodriguez with delaying
the feeding process, a minor rules violation. Several minutes after that situation was
resolved, Defendant Officer Velasco walked over to Plaintiff and punched him in the eye
and then placed his knees on Plaintiff’s lower back and his elbows on Plaintiff’s face.
Defendant also grabbed Plaintiff’s right hand and dislocated Plaintiff’s “pinky” and “ring”
fingers.
II.

LEGAL STANDARDS
Any party may move for summary judgment, and the Court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Wash.
Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
whether it be that a fact is disputed or undisputed, must be supported by (1) citing to
particular parts of materials in the record, including but not limited to depositions,
documents, declarations, or discovery; or (2) showing that the materials cited do not
establish the presence or absence of a genuine dispute or that the opposing party
cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1). The
Court may consider other materials in the record not cited to by the parties, but it is not
required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist.,
237 F.3d 1026, 1031 (9th Cir. 2001).
Plaintiff bears the burden of proof at trial, and to prevail on summary judgment,
he must affirmatively demonstrate that no reasonable trier of fact could find other than
for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
Defendants do not bear the burden of proof at trial and, in moving for summary
judgment, they need only prove an absence of evidence to support Plaintiff’s case. In re
Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

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In judging the evidence at the summary judgment stage, the Court may not make
credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984,
and it must draw all inferences in the light most favorable to the nonmoving party and
determine whether a genuine issue of material fact precludes entry of judgment, Comite
de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th
Cir. 2011).
III.

ALLEGED FACTS
A.

The Excessive Force Incident
1.

The Incident According to Defendant

On December 14, 2013, Plaintiff was housed as a pretrial detainee in the Fresno
County Jail where Defendant Correctional Officer Velasco was working. Decl. of Marti
Velasco ¶ 3; Pl.’s Dep. 76:4-5.
That evening, non-party Correctional Officers Sandoval and Rodriguez were
conducting the food distribution process in Pod-C, where Plaintiff was housed. Decl. of
Carlos Sandoval ¶¶ 2-3; Decl. of Enrique Rodriguez ¶¶ 2-3. All inmates who intend to
eat are required to be in line at the pod door before the feeding process begins.
Sandoval Decl. ¶ 3; Rodriguez Decl. ¶ 3. Each inmate is required to show his wristband
to the officer. Sandoval Decl. ¶ 3; Rodriguez Decl. ¶ 3.
When Officers Sandoval and Rodriguez began distributing food, other inmates
lined up to receive meals, but Plaintiff was on the phone. Sandoval Decl. ¶ 3; Rodriguez
Decl. ¶ 3; Pl.’s Dep. 76:14-16. Officer Sandoval asked Plaintiff to get off the phone and
line up for his meal. Sandoval Decl. ¶ 4. Plaintiff did not hang up the phone, but instead
cursed at Officer Sandoval. Id.
After Officers Sandoval and Rodriguez distributed the meals to the inmates in
Pod-C, Plaintiff approached them and demanded his evening meal. Sandoval Decl. ¶ 5;
Rodriguez Decl. ¶ 4. When the officers told Plaintiff that he would receive his meal after
they finished feeding the rest of the pods, Plaintiff became argumentative. Sandoval

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Decl. ¶ 5. At this point, Officer Sandoval opened the door to exit the pod. Id. As Officer
Rodriguez followed him out and attempted to shut the door, Plaintiff pushed the door
hard back towards Officer Rodriguez and the door hit him. Id. ¶ 6; Rodriguez Decl. ¶ 5.

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Construing this as an act of aggression towards Officer Rodriguez, the officers
immediately opened the door, grabbed Plaintiff, and pulled him out of the pod. Sandoval
Decl. ¶ 6; Rodriguez Decl. ¶ 5. Plaintiff began to resist, and Officer Rodriguez applied a
rear wrist lock in an attempt to gain control. Rodriguez Decl. ¶ 5. Officer Rodriguez does
not remember to which wrist he applied the wrist lock. Id.

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Once the officers got Plaintiff to the ground, Plaintiff got out of the wrist lock and
tucked his arms under his body. Sandoval Decl. ¶ 6; Rodriguez Decl. ¶ 6. Plaintiff
became generally uncooperative and combative and refused to respond to directives to
place his hands behind his back. Sandoval Decl. ¶ 6; Rodriguez Decl. ¶ 6. They tried to
handcuff Plaintiff but he kept moving his body and would not allow his arms to be pulled
together. Rodriguez Decl. ¶ 6; Velasco Decl. ¶ 5. He also kept trying to use his legs for
leverage to get off of the ground, so Officer Sandoval held Plaintiff’s legs. Sandoval
Decl. ¶ 7; Pl.’s Dep. at 43:21-22. Plaintiff began to squirm and scoot during this
encounter.3 Pl.’s Dep. 43:18-20.

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In an Errata Sheet that Plaintiff completed after his deposition, he sought to strike without explanation this
portion of his deposition testimony. See Klar Decl. Ex. 2. Pursuant to Federal Rule of Civil Procedure 30(e)(1), any
changes to a deposition testimony must be accompanied by a signed “statement listing the changes and the
reasons for making them.” In Hambleton Bros. Lumber Co. v. Balkin Enterp., Inc., 397 F.3d 1217, 1224 (9th Cir.
2005), the Ninth Circuit concluded the plaintiff violated Rule 30(e) when it “omitted any statement in the
deposition errata explaining the corrections, despite the fact that the plain language of the Rule requires that a
statement giving reasons for the corrections be included.” The Ninth Circuit went on to explain that “[a] statement
of reasons explaining corrections is an important component of errata submitted pursuant to FRCP 30(e), because
the statement permits an assessment concerning whether the alterations have a legitimate purpose.” Id. at 122425. “The absence of any stated reasons for the changes supports the ... concern that the [plaintiff's] ‘corrections'
were not corrections at all, but rather purposeful rewrites tailored to manufacture an issue of material fact ... and
to avoid a summary judgment ruling in [defendant's] favor.” Id. at 1226; see also Tourgeman v. Collins Fin. Servs.,
Inc.., 2010 WL 4817990, at *2 (S.D. Cal. Nov. 22, 2010) (“Courts insist on strict compliance with Rule 30(e)'s
technical requirements, including the requirement of a statement of reasons.”). Since Plaintiff failed to include a
statement of reasons with the proposed changes to his deposition testimony, and since he may not now attempt
to correct the error, the errata must be stricken. See id. at *2 n. 5 (rejecting offer to provide an errata sheet
explaining reasons for the changes because “Rule 30(e) required [party] to submit a statement of reasons along
with the original errata sheet, and the time for submitting a statement of reasons has since elapsed.” (citing Fed. R.
Civ. P. 30(e)(1); Blackthorne v. Posner, 883 F. Supp. 1443, 1454 n. 16 (D. Or. 1995)).

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While Officers Sandoval and Rodriguez were struggling with Plaintiff, Officer
Velasco, who was conducting feeding in Pod-E, responded to a call to assist. Velasco
Decl. ¶ 4. When he walked out of Pod-E, he observed Officers Sandoval and Rodriguez
struggling with Plaintiff who was resisting the officers. Id.
When Officer Velasco arrived, he told Plaintiff to put his hands behind his back
and stop resisting. Velasco Decl. ¶ 6. Plaintiff was not yet handcuffed. Pl.’s Dep. at
77:1-4. Plaintiff did not follow Officer Velasco’s instructions, and Officer Velasco then
participated in subduing Plaintiff by pulling Plaintiff’s arms and hands together so that
Officer Sandoval could place handcuffs on Plaintiff’s wrists. Sandoval Decl. ¶ 8; Velasco
Decl. ¶ 6; Rodriguez Decl. ¶ 8. Officer Velasco does not remember which of Plaintiff’s
arms he grabbed, and he did not employ any special wrist lock maneuver when
assisting with handcuffing him. Velasco Decl. ¶ 6. Because Plaintiff was resisting the
other two officers, Officer Velasco asserts that the force he used was minimal and
necessary to maintain the security and order of the jail. Id. ¶ 7.
After the handcuffs were placed on him, Plaintiff was lifted from the ground and
taken to the inmate services room and then the infirmary for medical evaluation.
Velasco Decl. ¶ 6; Sandoval Decl. ¶ 9; Rodriguez Decl. ¶ 8.
2.

The Incident According to Plaintiff

Plaintiff’s account of the events differs. He contends that, when Officer Sandoval
told him to get off the phone, Plaintiff responded civilly that he was entitled to the phone
call. Opp’n at 2. When Plaintiff ended the call, he asked for his meal, but the officers
denied it and closed the pod door on Plaintiff’s foot and shoulder. Id. They then
reopened the door and pulled Plaintiff out. Id. Officer Sandoval swiped at Plaintiff’s feet
to get him on the ground, but Plaintiff voluntarily lay down, placed his hands behind his
back, and crossed his feet. Pl’s Dep. 41:17-24. Once Plaintiff was on the ground, Officer
Rodriguez grabbed Plaintiff’s left arm, applied a rear wrist twist lock, and thrust his knee
into Plaintiff’s back. Pl.’s Dep. 42:5-14. Officer Sandoval crossed Plaintiff’s legs and

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placed them towards Plaintiff’s lower back. Pl.’s Dep. 42:15-25. Plaintiff was in
excruciating pain at this point, and he began to squirm and move around to alleviate the
pain. Opp’n at 3.
Officer Velasco arrived after Plaintiff was already subdued by Officers Rodriguez
and Sandoval. He did not say anything, but placed his knee in the middle of Plaintiff’s
back, used a lateral vascular neck restraint, and punched Plaintiff in the left eye. Opp’n
at 3. He also grabbed Plaintiff’s right arm and applied a rear wrist twist lock to the right
hand, fracturing the right fourth digit and caused Plaintiff to blackout. Id. at 3-4.
B.

Plaintiff’s Injuries

At the infirmary, photographs were taken of Plaintiff’s hands, face, chest and
back. Lara Decl. Ex. 2. Plaintiff complained of pain in his right upper arm, right wrist,
and left shoulder, and there were handcuff abrasions on Plaintiff’s right wrist. Bird Decl.
Ex. 1 at 8. Plaintiff’s right upper arm was painful on examination, it had limited range of
motion, and there was swelling. The examining medical staff member ordered x-rays to
rule out a fracture, prescribed ibuprofen, and provided hot and cold compresses to be
used on Plaintiff’s right arm for three days. Id. An x-ray taken on December 17, 2013,
showed no “No fracture, dislocation or other significant abnormality” to Plaintiff’s right
forearm. Bird Decl. Ex. 1 at 12. Plaintiff was cleared to return to his housing. Velasco
Decl. ¶ 6; Sandoval Decl. ¶ 9; Rodriguez Decl. ¶ 8.
As a result of this incident, Plaintiff claims that he sustained injuries to his left
shoulder, right forearm, right wrist, right hand (fractured fourth digit and weakened fifth
digit), lower back, and left eye. Pl.’s Dep. 88:9-11; Opp’n at 4-5.
Plaintiff’s medical records before and after the December 2013 incident provide
some perspective regarding Plaintiff’s injuries.
As noted supra, there were abrasions on Plaintiff’s right wrist from the placement
of handcuffs. An October 10, 2014, institutional medical record notes that “Range of
motion of the wrist is completely normal.” Bird Decl. Ex. 3 at 63.

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Also as noted supra, a radiology report dated December 17, 2013, revealed “No
fracture, dislocation or other significant abnormality” to Plaintiff’s right forearm
immediately following the incident. Bird Decl. Ex. 1 at 12. There are no other medical
records related to Plaintiff’s right forearm.

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Plaintiff’s left shoulder injury was documented in the medical records following
the December 2013 incident. There are no other medical records related to Plaintiff’s
left shoulder.

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There are no medical records related to Plaintiff’s left eye.

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With regard to Plaintiff’s right hand, pre-incident non-institutional records reveal
he had two dislocated fingers in his right hand, including the fourth digit.4

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On May 23, 2012, Plaintiff was examined at Community Regional Medical
Centers (“CRMC”) emergency room (“ER”) in Fresno, California, for dislocation of the
fourth digit of his right hand. Bird Decl. Ex. 2 at 29-39. The notes indicate that Plaintiff
was involved in a fight and fell on his right hand, dislocating the third and fourth digits.
Plaintiff was able to “pop” the third digit back in place, but required medical assistance
with the fourth. Examination and x-rays showed swelling of the second and third fingers
but no fractures. Plaintiff’s fourth digit was set back in place by the ER staff, and he was
prescribed Hydrocodone for pain management. Plaintiff was also directed to wear a
splint, limit his use of his right hand, and elevate it as much as possible.

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Plaintiff was seen again at CRMC on June 6, 2012, where his pain medication
was renewed and he was referred to physical therapy. Bird Decl. Ex. 2 at 43. On August
22, 2012, Plaintiff was discharged from physical therapy because of his poor
compliance with the treatment regimen and home exercise program and repeatedly
missed appointments. Id. at 47.

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On July 11, 2012, Plaintiff was seen by a plastic surgeon. Bird Decl. Ex. 2 at 45.
The medical notes indicate that Plaintiff had poor function of his right hand.

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Plaintiff attributes the source of his right hand injury to a 2012 fight and a March 2014 incident in another prison.

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April 2014 prison x-rays of Plaintiff’s right hand were negative for fracture and
otherwise normal. See Bird Decl. Ex. 3 at 66, 69.
On October 10, 2014, Plaintiff was examined for, among other things, a March
2014 injury to his right hand. Bird Decl. Ex. 3 at 63. The medical notes report: ”X-ray
was negative, and the injury resolved. The patient has been able to use his right hand to
perform any task that he has been asked to do as a dormitory porter or in class when he
is required to write and use a computer.” Examination of the finger revealed: “The area
where the patient complained of old injury, the patient does have some mild deformity of
the fourth and the third finger without affecting the function of hand grip or grab. No
tenderness.”
A December 11, 2015, Chronic Care Provider Progress Note reveals that Plaintiff
had surgery on his right hand in 2013 related to two dislocated fingers. Bird Decl. Ex. 3
at 59. The examining medical staff noted that “there does not appear to be significant
loss of function to the right hand,” which was negative for fracture and normal otherwise.
See Bird Decl. Ex. 3 at 66, 69.
Between January and April 2012, Plaintiff also visited the CRMC ER multiple
times for chronic low back pain for which he was prescribed hydrocodone. Bird Decl.
Ex. 2 at 16-27. On March 30, 2012, Plaintiff sought a prescription refill at CMC; the
examining doctor filled it but with a notation to “taper[] with no more refill.” On April 27,
2012, Plaintiff returned to CRMC to refill his pain medication, but two examining doctors
refused to prescribe more and refused to see him again because of his belligerent
behavior.
A November 21, 2012, CRMC medical note reports “chronic back pain,” abuse of
pain medication, and drug-seeking behavior.
On August 22, 2013, Plaintiff returned to CRMC ER with complaints of body
aches and lower back pain. Bird Decl. Ex. 2 at 51. Because of “multiple body pain” that
Plaintiff claimed was a result of an assault by seven police officers on August 19, the

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treating doctor prescribed norco for pain management.

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On October 5, 2013, Plaintiff was seen again at the CRMC ER with a complaint
of chronic back pain. Bird Decl. Ex. 2 at 53.

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April 2014, prison x-rays of Plaintiff’s low back were negative for fracture and
normal otherwise. See Bird Decl. Ex. 3 at 66.

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On October 10, 2014, Plaintiff was examined for “low back pain that has no
impact on his daily activities or exercise.” Bird Decl. Ex. 3 at 63. This was deemed a
“[m]inor orthopedic problem that does not qualify for a low bunk Chrono.”

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On December 24, 2014, Plaintiff was prescribed Ibuprofen for low back pain. Bird
Decl. Ex. 3 at 61.

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On January 7, 2015, Plaintiff was seen for a follow-up for his low back pain. Bird
Decl. Ex. 3 at 62. Plaintiff said his back pain had been “okay. It is there, but well
tolerated and does not affect his daily function.” Examination revealed normal range of
motion.

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On November 2, 2015, Plaintiff was seen at an offsite medical care provider for
lower back pain, with a pain level of “8/10”. Bird Decl. Ex. 3 at 60. The notes indicate
that Plaintiff was last prescribed ibuprofen for the pain and it had proved “Effective.”
V.

ANALYSIS
A.

Fourteenth Amendment Excessive Force

Excessive force claims brought by pretrial detainees under the Fourteenth
Amendment are evaluated under the “objectively unreasonable” standard. Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015). Courts apply a more rigid standard in these
cases than in cases involved prisoners because pretrial detainees, unlike prisoners,
must not be punished at all, much less sadistically and maliciously. Id. at 2475 (citing
Ingraham v. Wright, 430 U.S. 651, 671-71 (1977)). When determining whether or not
an officer’s use of force was objectively unreasonable, courts must evaluate the case
from the perspective of a reasonable officer on the scene at the time of the event, and

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not with the 20/20 vision of hindsight. Graham v. Connor, 490 U.S. 386, 396 (1989).
Courts must also balance the state’s legitimate interest in maintaining order in the
facility in which the individual is detained, and, where appropriate, defer to the “policies
and practices that in th[e] judgment” of jail officials “are needed to preserve internal
order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520,
540 (1979). Courts may look at a variety of factors to determine whether the force used
was objectively unreasonable, including but not limited to: the relationship between the
need for the use of force and the amount of force used, the extent of the detainee’s
injury, the threat reasonably perceived by the officer, and whether the detainee was
actively resisting. Kingsley, 135 S. Ct. at 2473.
Because assessing the need for force “nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom... summary
judgment or judgment as a matter of law...should be granted sparingly” in cases
involving claims of excessive force. Drummond v. City of Anaheim, 343 F.3d 1052, 1056
(9th Cir. 2003). “This is because such cases almost always turn on a jury's credibility
determinations.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). “Where the
objective reasonableness of an officer's conduct turns on disputed issues of material
fact, it is a question of fact best resolved by a jury; only in the absence of material
disputes is it a pure question of law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th
Cir. 2011) (citations and quotation marks omitted).
B.

Discussion

Defendant moves for summary judgment on the ground that the force used was
reasonable and minimal under the circumstances and that Plaintiff’s claims of injury are
unsupported.
On review, the Court concludes that summary judgment is not warranted
because the amount and type of force used by Defendant Velasco is disputed by the
parties. Defendant contends he used only the minimal amount of force necessary to

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secure order after witnessing Plaintiff resisting Officers Sandoval’s and Rodriguez’s
attempts to restrain him. Plaintiff asserts that the force was excessive and unnecessary
since he was already subdued when Defendant arrived and that any movement on his
part was to minimize pain inflicted by the other officers. He also claims that Defendant
placed his knee in the middle of Plaintiff’s back, used a lateral vascular neck restraint,
punched Plaintiff in the left eye, and dislocated his finger. This factual dispute precludes
the entry of summary judgment.
Defendant’s argument regarding Plaintiff’s injuries produces no different result.
Defendant submits Plaintiff’s medical records to establish the existence of injuries predating the December 14, 2013 incident and to show that, despite the presence of these
and other injuries, Plaintiff is able to function normally. Defendant’s medical expert, Dr.
Ken Bird, opines that the cause of Plaintiff’s low back and right hand pain cannot be
attributed to Defendant, that there is no evidence of any sign or symptom of injury to
Plaintiff’s right wrist or forearm, and that Plaintiff has not suffered long-lasting effects as
a result of any of his claimed injuries.
It is true that the medical records following the December 2013 incident do not
support Plaintiff’s claim that Defendant dislocated Plaintiff’s finger on his right hand or
that he suffered any other injury or pain in his right hand, right forearm, lower back, or
left eye. It is also true that Plaintiff’s lower back and right hand injuries can be attributed
to other incidents pre-dating Plaintiff’s encounter with Defendant, and that Plaintiff does
not appear to have suffered severe or long-lasting effects from the December 2013
incident. Nonetheless, there is evidence in the record showing that, immediately
following the incident, Plaintiff complained of pain in his right arm, right wrist, and left
shoulder, and there were abrasions on Plaintiff’s right wrist that were cleaned.
Additionally, Plaintiff’s right upper arm was painful and swollen on examination, and it
had limited range of motion. Plaintiff’s injuries, of course, need not be severe or longlasting or even directly attributable to Defendant’s conduct in the first instance in order

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to support an excessive force claim.
In any event, the relevant inquiry is not whether Plaintiff's injuries are de minimis,
but whether the use of force was de minimis. See Wilkins v. Gaddy, 559 U.S. 34, 37
(2010) (“Injury and force ... are only imperfectly correlated, and it is the latter that
ultimately counts.”) The degree of Plaintiff's injuries only serves as evidence of the
degree of force used, it does not conclusively resolve the question of whether the
degree of force was de minimis. See Wilkins, 559 U.S. at 37 (“The extent of injury may
... provide some indication of the amount of force applied.”) Defendant cannot escape
liability for the use of force simply because Plaintiff failed to suffer long-lasting effects or
any treatable injury. “An inmate who is gratuitously beaten by guards does not lose his
ability to pursue an excessive force claim merely because he has the good fortune to
escape without serious injury.” Id.; Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“In the
excessive force context, society's expectations are different. When prison officials
maliciously and sadistically use force to cause harm, contemporary standards of
decency are always violated. This is true whether or not significant injury is evident.”)
(internal citations omitted).
This case turns on whether the force used was in a good faith effort to restore
order or maintain discipline. The extent of Plaintiff's injury is a factor on determining
whether the force used was excessive. Because there is a dispute about whether
Plaintiff was subdued when Officer Velasco arrived and there is evidence in the record
that Plaintiff suffered some injury during the incident, a reasonable jury could conclude
that the quantum of force used was objectively unreasonable and that the force was
unnecessary, and therefore unconstitutional.
C.

Qualified Immunity

Law enforcement officers are shielded from suit unless their conduct violates
“clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity

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test comprises two inquiries, but a court may consider only the second in accordance
with fairness and efficiency and in light of the circumstances of a particular case.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). Under the first prong, the court
considers whether the alleged facts, taken in the light most favorable to plaintiff, show
that defendants' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194,
201 (2001), overruled on other grounds in Pearson, 555 U.S. at 223. In resolving this
first inquiry, the court determines whether the alleged facts, taken in the light most
favorable to the plaintiff, show that defendants were reasonable in their belief that their
conduct did not violate the Constitution. Wilkins v. City of Oakland, 350 F.3d 949, 955
(9th Cir. 2003) (citing Saucier). In other words, even if Defendant’s actions did violate
the Eighth Amendment, a “reasonable but mistaken belief that [his] conduct was lawful
would result in the grant of qualified immunity.” Id.; see also Rosenbaum v. Washoe
Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (noting an officer is entitled to qualified
immunity for unlawful arrest if he had probable cause or if “it is reasonably arguable that
there was probable cause for the arrest”) (emphasis in original). Qualified immunity thus
“provides ample protection to all but the plainly incompetent or those who knowingly
violate the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Here, Defendant is not entitled to qualified immunity because, viewing the facts in
Plaintiff’s favor, the Court cannot conclude that the amount of force used by Defendant
was lawful under the circumstances. See Santos v. Gates, 287 F.3d 846, 855 (9th Cir.
2002) (quoting Saucier, 533 U.S. at 205) (“[W]hether the officers may be said to have
made a ‘reasonable mistake’ of fact or law, may depend on the jury's resolution of
disputed facts and the inferences it draws therefrom. Until the jury makes those
decisions, we cannot know, for example, how much force was used, and, thus, whether
a reasonable officer could have mistakenly believed that the use of that degree of force
was lawful.”); Walker v. Jones, 2010 WL 3702659 (N.D. Cal. Sept. 16, 2010) (“Viewing
the facts in the light most favorable to plaintiff, it cannot be said that a reasonable officer

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in defendants' position would have believed that hitting, kicking and stepping on
plaintiff's face after he was handcuffed was reasonably necessary to maintain discipline
and order.”); Rosenblatt v. City of Hillsborough, No. 12–cv05210–LB, 2013 WL
6001346, at *15 (N.D.Cal. Nov. 12, 2013) (officers were not entitled to qualified
immunity for use of excessive force because “the issues of disputed fact preclude a
determination at this point” on qualified immunity, and “Defendants' argument relies on
their version of the facts”); McCloskey v. Courtnier, 2012 WL 646219, at *3 (N.D. Cal.
Feb. 28, 2012) (“[B]ecause the facts relevant to the issue of qualified immunity are
inextricably intertwined with the disputed facts relevant to the issue of excessive force,
defendants are not entitled to summary adjudication on the issue of qualified
immunity.”).
IV.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s motion for

summary judgment is DENIED. A subsequent scheduling order will be issued setting
this matter for trial.

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Dated:

July 19, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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