Wright v. Carasco et al

Filing 43

ORDER GRANTING IN PART DEFENDANTS' 29 MOTION TO DISMISS; GRANTING IN PART DEFENDANTS' 29 MOTION FOR SUMMARY JUDGMENT; AND REFERRING CASE TO PRO SE PRISONER SETTLEMENT PROGRAM. Signed by Judge Claudia Wilken on 3/30/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/30/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 DEMETRIUS AHMED WRIGHT, 4 5 6 No. C 10-0064 CW (PR) Plaintiff, ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS; GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND REFERRING CASE TO PRO SE PRISONER SETTLEMENT PROGRAM v. R. CARRASCO, et al., 7 Defendants. (Docket nos. 29, 40) 8 / 9 United States District Court For the Northern District of California 10 Plaintiff Demetrius Ahmed Wright, a prisoner at Salinas Valley 11 State Prison (SVSP), filed this pro se civil rights action under 12 42 U.S.C. § 1983. 13 were deliberately indifferent to his serious medical needs and used 14 excessive force against him in violation of the Eighth Amendment. 15 The Court found cognizable Plaintiff's Eighth Amendment claims and 16 exercised supplemental jurisdiction over Plaintiff's state law 17 claims of negligence, assault and battery. 18 D. Ferry and E. West now move to dismiss and for summary judgment. 19 Having considered all the papers filed by the parties, the Court 20 GRANTS in part the motion to dismiss, and GRANTS in part the motion 21 for summary judgment. 22 23 24 25 Plaintiff alleges that prison officials at SVSP Defendants R. Carrasco, BACKGROUND The following facts are taken from the allegations in Plaintiff's verified complaint. On August 31, 2008, Plaintiff was incarcerated at SVSP. 26 Carrasco and Ferry were correctional officers at SVSP. 27 licensed vocational nurse at SVSP. 28 West was a 1 After Plaintiff requested escort to the medical clinic to 2 receive his prescription medication for pain and nausea, Ferry 3 placed Plaintiff in restraints and escorted him from his housing 4 unit to the medical clinic. 5 them. 6 Compl. ¶ 7. Carrasco accompanied Id. ¶ 8. When Plaintiff approached the medical clinic window, nurse 7 Hernandez alerted West to Plaintiff's presence. 8 can go to the cage and wait. 9 Hernandez directed Ferry to return Plaintiff to his housing unit United States District Court For the Northern District of California 10 I'll be another hour." because the medical staff was not ready for him. 11 West replied: "He Compl. ¶ 10. Id. Plaintiff was in great pain because he did not receive his 12 medication; he asked to speak with a supervisor. 13 Ferry and Carrasco then took hold of Plaintiff's right and left 14 forearms, respectively. 15 ignored Plaintiff's complaints of pain and nausea. 16 Plaintiff began to vomit blood. 17 Id. Compl. ¶ 11. They refused to call a supervisor and Id. ¶ 12. Id. While walking back to the housing unit, Carrasco forcefully 18 pulled Plaintiff and put him off balance. 19 asked Carrasco three times to stop pulling him because he was in 20 pain. 21 right hand and struck Plaintiff in the face and head with his knee. 22 Id. ¶ 14. 23 and Carrasco kneed Plaintiff in the face and head and held 24 Plaintiff's head down by placing his knee on it. 25 Id. Compl. ¶ 13. Plaintiff Carrasco grasped the back of Plaintiff's neck with his "These defendants" then slammed Plaintiff to the ground, Id. Approximately fifteen minutes after Plaintiff returned to the 26 holding cage, West visited him for a medical assessment. 27 ¶ 15. Compl. West noted injuries to both sides of Plaintiff's face. 28 2 Id. 1 She also gave Plaintiff the medication he had requested almost two 2 hours earlier. 3 Id. A few hours later, Correctional Lieutenant S. Hatton and 4 Sergeant Ingle interviewed Plaintiff about his allegation of 5 excessive force. 6 Compl. ¶ 16. The interview was videotaped. Id. On September 1, 2008, Plaintiff submitted an inmate appeal 7 (SVSP A-08-04056) regarding excessive force. 8 Medina Supp. Mot. Summ J. (Medina Decl.) Ex. B. 9 exhausted and denied. Compl. ¶ 16; Decl. E. The appeal was Id. United States District Court For the Northern District of California 10 Additionally, Plaintiff's request for an interview with D. 11 Lewis, a nursing supervisor, led to an informal resolution that 12 Plaintiff's medication would be dispensed properly. 13 Compl. ¶ 19. On January 1, 2010, Plaintiff filed the present action for 14 damages and injunctive relief. 15 in providing him his prescribed medication resulted in his 16 suffering pain and nausea for two hours and constitutes deliberate 17 indifference to his serious medical needs in violation of the 18 Eighth Amendment, and negligence under California law. 19 ¶¶ 22-23. 20 of unnecessary physical force constitutes cruel and unusual 21 punishment in violation of the Eighth Amendment, and assault and 22 battery under California law. 25 26 Compl. Further, Plaintiff claims that Carrasco and Ferry's use 23 24 Plaintiff claims that West's delay Id. ¶¶ 20-21. DISCUSSION I. Motion to Dismiss Defendants move to dismiss Plaintiff's Eighth Amendment deliberate indifference and state law negligence claims against 27 28 3 1 West1 pursuant to the unenumerated portion of Federal Rule of Civil 2 Procedure 12(b). 3 his administrative remedies as required by the Prison Litigation 4 Reform Act (PLRA), 42 U.S.C. § 1997e(a).2 Defendants argue that Plaintiff failed to exhaust 5 A. 6 The PLRA provides, "No action shall be brought with respect to Legal Standard 7 prison conditions under [42 U.S.C. § 1983], or any other Federal 8 law, by a prisoner confined in any jail, prison, or other 9 correctional facility until such administrative remedies as are United States District Court For the Northern District of California 10 available are exhausted." 11 exhaustion requirement is mandatory and not subject to the 12 discretion of the court. 13 A complaint must be dismissed if the prisoner did not exhaust all 14 available administrative remedies before filing suit. 15 Churner, 532 U.S. 731, 738 (2001); McKinney v. Carey, 311 F.3d 16 1198, 1199 (9th Cir. 2002). 17 42 U.S.C. § 1997e(a). The PLRA's Woodford v. Ngo, 548 U.S. 81, 85 (2006). Booth v. The PLRA requires "proper exhaustion" of administrative 18 remedies. 19 standard, prisoners not only must lodge a formal administrative 20 grievance, but also pursue it through each stage of the Woodford, 548 U.S. at 93. To meet this exacting 21 22 23 24 25 26 27 28 1 Defendants' motion to dismiss and Plaintiff's opposition suggest that Plaintiff's Eighth Amendment claim of deliberate indifference was made against all three Defendants. Further, Defendants' motion to dismiss suggests that Plaintiff's state law claim of negligence was made against all three Defendants. However, the Court finds that the language of the complaint indicates clearly that Plaintiff directed the Eighth Amendment claim of deliberate indifference and the state law claim of negligence against only West. See Compl. ¶¶ 22-23. 2 Defendants also move to dismiss Plaintiff's excessive force and assault and battery claims against Ferry. This argument is addressed below, in section II, subsection D of this Order. 4 1 administrative process in "compliance with an agency's deadlines 2 and other critical procedural rules." 3 exhaust even when the remedy he or she seeks is unavailable through 4 the grievance process, notably money damages. 5 Booth, 532 U.S. at 734); see also Morton v. Hall, 599 F.3d 942, 945 6 (9th Cir. 2010). 7 Id. at 90. A prisoner must Id. at 85-86 (citing State prison regulations define the contours of proper exhaustion. 9 California law, inmates have a right to an administrative appeal of 10 United States District Court For the Northern District of California 8 "any departmental decision, action, condition, or policy which they 11 can demonstrate as having an adverse effect upon their welfare." 12 Cal. Code Regs. (CCR) tit. 15, § 3084.1(a). 13 right to file administrative appeals alleging misconduct by 14 correctional officers. 15 Jones v. Bock, 549 U.S. 199, 218 (2007). Under Inmates also have a Id. § 3084.1(e). To exhaust all available administrative remedies, a prisoner 16 in California must complete a Form 602 and proceed through the 17 following four levels of administrative review: (1) an informal 18 level grievance filed directly with the prison staff member against 19 whom the grievance is brought; (2) a first formal level appeal 20 filed with one of the institution's appeal coordinators; (3) a 21 second formal level appeal filed with the institution head or 22 designee; and (4) a third formal level appeal filed with the 23 Director of the California Department of Corrections and 24 Rehabilitation (CDCR) or designee. 25 Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). 26 administrative remedies exhaustion requirement under § 1997e(a). 27 Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997). 28 5 Id. § 3084.5; see Brodheim v. This satisfies the 1 Non-exhaustion under § 1997e(a) is an affirmative defense that 2 must be raised and proved by a defendant in an unenumerated motion 3 to dismiss under Federal Rule of Civil Procedure 12(b). 4 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 5 In deciding such a motion, the court may look beyond the pleadings 6 and decide disputed issues of fact. Jones, 549 Wyatt, 315 F.3d at 1119-20. 7 B. 8 Defendants argue that Plaintiff never submitted a grievance 9 Eighth Amendment Claim Against West regarding West's alleged deliberate indifference to Plaintiff's United States District Court For the Northern District of California 10 serious medical needs and thus deprived prison officials of a full 11 and fair opportunity to adjudicate this claim before Plaintiff 12 filed this action. 13 In response, Plaintiff argues he satisfied the exhaustion 14 requirement by submitting an informal "Request for Interview" with 15 nursing supervisor D. Lewis and, as a result, he was interviewed by 16 Lewis and informed by her that the nursing staff would dispense his 17 medication properly in the future. 18 because he encountered no further problems during the time he was 19 receiving medication, there was no need for further administrative 20 review. 21 Plaintiff maintains that The Court finds Plaintiff's argument unpersuasive. As noted 22 above, the correct avenue to exhaust administrative remedies is by 23 filing a Form 602 and proceeding through four levels of appeal. 24 Here, Plaintiff did not follow these procedures with respect to his 25 complaints against West. 26 from Lewis at the informal level concerned only the issue of the 27 dispensation of his medication. Rather, the resolution Plaintiff secured It did not address the issue of 28 6 1 West's alleged failure to attend to Plaintiff's serious medical 2 needs and his resulting injury. 3 issue of West's inadequate medical care in the grievance he 4 submitted on September 1, 2008 (SVSP A-08-04056), which addressed 5 his excessive force claims. 6 officials a full and fair opportunity to address the issue of 7 West's actions before he filed this lawsuit. Neither did Plaintiff raise the Thus, Plaintiff never offered prison 8 Because Plaintiff failed to exhaust his administrative 9 remedies with respect to his Eighth Amendment claim of deliberate United States District Court For the Northern District of California 10 indifference against West, the Court GRANTS, without prejudice, the 11 motion to dismiss this claim. 12 new action if he is able to exhaust his administrative remedies in 13 compliance with the California Code of Regulations. Plaintiff may refile this claim in a 14 C. 15 Defendants argue that Plaintiff failed to exhaust his 16 administrative remedies under the PLRA with respect to his 17 supplemental state law negligence claim against West. 18 exhaustion requirement does not apply to state law claims and 19 Defendants have not argued that Plaintiff failed to meet the 20 applicable state law exhaustion requirement. 21 Alameida, 2006 WL 3457214, at *3 (E.D. Cal.) (holding that section 22 1997e(a) does not apply to state law claims); see also Martinez v. 23 California, 2009 WL 649892, at *3 (E.D. Cal.) (discussing the 24 application of California's Tort Claims Act to a prisoner's state 25 tort claims of negligence, assault and battery). 26 27 State Law Claim Against West The PLRA See Tapia v. Nevertheless, because the Court has dismissed Plaintiff's Eighth Amendment deliberate indifference claim against West, 28 7 1 Plaintiff’s supplemental state law negligence claim against West is 2 also DISMISSED without prejudice. 3 Acri v. Varian Associates, Inc., 114 F.3d 999, 1000 (9th Cir. 1997) 4 (holding district court correctly exercises discretionary authority 5 to dismiss state law claims when associated federal claims 6 dismissed before trial). 7 supplemental to a new federal claim against West if he is able 8 properly to exhaust his administrative remedies. 9 file it in state court, but, again, only if he is able properly to See 28 U.S.C. § 1367(c)(3); Plaintiff may refile this claim as He may instead United States District Court For the Northern District of California 10 exhaust the appropriate state administrative remedies. 11 II. 12 Motion for Summary Judgment Defendants argue that they are entitled to summary judgment 13 concerning Plaintiff's claims alleging excessive force, assault and 14 battery against Ferry and Carrasco. 15 used reasonable force to regain control of Plaintiff and that the 16 force used was for the sole purpose of restoring or maintaining 17 order. 18 was excessive, Ferry and Carrasco are entitled to qualified 19 immunity because reasonable officers would not have known that 20 their actions were unlawful. Defendants contend that they Further, Defendants argue that, even if the use of force 21 A. 22 Summary judgment is only proper where the pleadings, discovery Legal Standard 23 and affidavits show there is "no genuine issue as to any material 24 fact and that the moving party is entitled to judgment as a matter 25 of law." 26 judgment "against a party who fails to make a showing sufficient to 27 establish the existence of an element essential to that party's 28 case, and on which that party will bear the burden of proof at Fed. R. Civ. P. 56(c). The court will grant summary 8 1 trial." 2 The moving party bears the initial burden of identifying those 3 portions of the record that demonstrate the absence of a genuine 4 issue of material fact. 5 party to "go beyond the pleadings, and by his own affidavits, or by 6 the 'depositions, answers to interrogatories, or admissions on 7 file,' designate 'specific facts showing that there is a genuine 8 issue for trial.'" 9 United States District Court For the Northern District of California 10 B. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden then shifts to the non-moving Id. at 324 (citing Fed. R. Civ. P. 56(e)). Motion to Exclude Videotape In support of their motion for summary judgment, Defendants 11 rely on statements made by Plaintiff and Plaintiff's physical 12 appearance, as captured in a videotaped interview of Plaintiff by 13 Correctional Lieutenant S. Hatton and Sergeant Ingle about the 14 incident on the day it occurred. 15 (videotape). 16 See Hatton Decl. Ex. D Plaintiff alleges that he has been unable to view the 17 videotape even though he followed the instructions of Defendants' 18 counsel and requested the videotape from the Litigation 19 Coordinator's office. 20 videotape as evidence in support of the motion for summary judgment 21 and to deny the motion for summary judgment until he has had the 22 opportunity to view the videotape. 23 Consequently, he moves to exclude the The Court will not consider the videotape on this motion but 24 will consider only the interview transcript as quoted in 25 Defendants' brief. 26 ensure that the transcript is accurate. 27 exclude the videotape is GRANTED. The Court will review the videotape only to 28 9 Plaintiff's motion to C. 2 The treatment a prisoner receives in prison and the conditions 3 under which he is confined are subject to scrutiny under the Eighth 4 Amendment. 5 incarceration, only the unnecessary and wanton infliction of pain 6 . . . constitutes cruel and unusual punishment forbidden by the 7 Eighth Amendment." 8 (ellipsis in original). 9 Amendment when two requirements are met: (1) the deprivation 10 United States District Court For the Northern District of California 1 alleged must be objectively, sufficiently serious, Farmer v. 11 Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 12 U.S. 294, 298 (1991)), and (2) the prison official must possess a 13 sufficiently culpable state of mind, i.e., the offending conduct 14 must be wanton. 15 Maass, 12 F.3d 1444, 1451 (9th Cir. 1993). 16 Excessive Force Helling v. McKinney, 509 U.S. 25, 31 (1993). "After Whitley v. Albers, 475 U.S. 312, 319 (1986) A prison official violates the Eighth Id. (citing Wilson, 501 U.S. at 297); LeMaire v. Whenever prison officials stand accused of using excessive 17 force in violation of the Eighth Amendment, the core judicial 18 inquiry is whether force was applied in a good-faith effort to 19 maintain or restore discipline, or maliciously and sadistically to 20 cause harm. 21 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In determining whether the use of force was for the purpose of 22 maintaining or restoring discipline, or for the malicious and 23 sadistic purpose of causing harm, a court may evaluate the need for 24 application of force, the relationship between that need and the 25 amount of force used, the extent of any injury inflicted, the 26 threat reasonably perceived by the responsible officials, and any 27 efforts made to temper the severity of a forceful response. 28 Hudson, 503 U.S. at 7; LeMaire, 12 F.3d at 1454; see also Spain v. 10 1 Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (guards may use force 2 only in proportion to need in each situation). 3 Although the extent of injury suffered by a prisoner is one of 4 the factors to be considered in determining whether the use of 5 force is wanton and unnecessary, the absence of serious injury does 6 not end the Eighth Amendment inquiry. 7 Whether the alleged wrongdoing is objectively "harmful enough" to 8 establish a constitutional violation is contextual and responsive 9 to contemporary standards of decency. Hudson, 503 U.S. at 7. Id. at 8 (citing Estelle v. United States District Court For the Northern District of California 10 Gamble, 429 U.S. 97, 103 (1976)). 11 violated when prison officials maliciously and sadistically use 12 force to cause harm, whether or not significant injury is evident. 13 Id.; see Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir. 1991) 14 (it is not degree of injury which makes out violation of Eighth 15 Amendment but use of official force or authority that is 16 intentional, unjustified, brutal and offensive to human dignity). 17 Such standards are always This is not to say that the "absence of serious injury" is not 18 relevant to the Eighth Amendment inquiry. 19 The extent of injury suffered by an inmate is one factor that may 20 suggest whether the use of force could possibly have been thought 21 necessary in a particular situation. 22 also provide some indication of the amount of force applied. 23 Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). 24 malevolent touch by a prison guard gives rise to a federal cause of 25 action. 26 of cruel and unusual punishment necessarily excludes from 27 constitutional recognition de minimis uses of physical force, 28 provided that the use of force is not of a sort repugnant to the Hudson, 503 U.S. at 9. Id. Hudson, 503 U.S. at 7. The extent of injury may But not every The Eighth Amendment's prohibition 11 1 conscience. 2 causes no discernable injury almost certainly fails to state a 3 valid excessive force claim. Id. An inmate who complains of a push or shove that Id. Eighth Amendment Claim Against Ferry3 4 D. 5 Defendants argue that the undisputed evidence shows that 6 Plaintiff has admitted that Ferry did not use force against him. 7 Defendants are correct. 8 9 Plaintiff offers inconsistent accounts of Ferry's involvement. In his complaint, Plaintiff suggests that Ferry used force against United States District Court For the Northern District of California 10 him when he states that "these defendants" slammed him to the 11 ground. 12 Plaintiff's interview with Lieutenant Hatton and Sergeant Ingle, 13 however, Plaintiff admitted that Ferry did not use force against 14 him. 15 holding his left arm when Carrasco approached and took hold of his 16 right arm. 17 forcefully, Plaintiff continued, Plaintiff asked Carrasco to allow 18 Ferry to escort him. 19 grasped the back of Plaintiff's neck with his right hand, struck 20 Plaintiff twice before he hit the ground and again struck Plaintiff 21 multiple times while he was on the ground. 22 See Compl. ¶ 14. On Plaintiff's Form 602 and in On his Form 602, Plaintiff stated that Ferry was already Medina Decl. Ex. B. Id. When Carrasco pulled him Plaintiff then described how Carrasco Id. Plaintiff offered a similar account in his interview. He 23 described Ferry's involvement as follows: Ferry was merely standing 24 on Plaintiff's left side; Plaintiff told Carrasco to let Ferry 25 26 27 28 3 Defendants move to dismiss Plaintiff's Eighth Amendment excessive force and state law assault and battery claims against Ferry as unexhausted. Plaintiff presents evidence he argues shows exhaustion. The Court DENIES this motion as moot because, even if the claims are exhausted, Ferry is entitled to summary judgment. 12 1 escort him; while Carrasco pulled Plaintiff in one direction, Ferry 2 pulled him in another direction. 3 Plaintiff's neck, pushed his head down towards waist level and 4 kneed him in the face twice before he hit the ground. 5 asked Plaintiff if he was "saying it was all Officer Carrasco," 6 Plaintiff said, "Yes." Carrasco put his arm around When Hatton Hatton Decl. Ex. D. 7 Based on the above facts, the Court determines that Plaintiff 8 has not presented evidence that Ferry used excessive force against 9 him. Plaintiff cannot defeat summary judgment by creating a United States District Court For the Northern District of California 10 dispute of fact based on his own contradictory statements. 11 Plaintiff's evidence shows only that Ferry was holding one of his 12 arms because Ferry, along with Carrasco, was escorting Plaintiff 13 back to his housing unit. 14 Plaintiff's evidence shows that Ferry did not maliciously and 15 sadistically use such force to cause Plaintiff harm, and that his 16 use of force was de minimis and did not amount to a violation of 17 Plaintiff's Eighth Amendment rights. 18 Further, even if Ferry used force, See Hudson, 503 U.S. at 9. Because Plaintiff has not raised a genuine dispute of material 19 fact as to whether Ferry's actions amount to excessive force, 20 summary judgment is GRANTED to Ferry on this claim. 21 because the Court concludes that Ferry did not violate Plaintiff’s 22 Eighth Amendment rights, it does not reach the merits of Ferry's 23 qualified immunity claim. Further, 24 E. 25 Plaintiff's state law assault and battery claims against Ferry 26 fail for the same reason his Eighth Amendment excessive force claim 27 failed. 28 battery require showing that the use of force was unreasonable. State Law Claims Against Ferry Causes of action for California law torts of assault and 13 1 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th 2 Cir. 2001). 3 that Ferry did not use force against him. 4 used force, Plaintiff's evidence demonstrates that the force was 5 minimal and not unreasonable. 6 As previously set forth, Plaintiff's evidence shows Further, even if Ferry Because Plaintiff has not raised a genuine dispute of material 7 fact as to whether Ferry's actions amount to assault and battery, 8 summary judgment is GRANTED to Ferry on these claims. 9 F. United States District Court For the Northern District of California 10 Eighth Amendment Claim Against Carrasco Defendants argue that Carrasco's use of force was not 11 excessive and, therefore, did not violate Plaintiff's Eighth 12 Amendment rights. 13 that Plaintiff has raised genuine issues of material fact as to 14 whether Carrasco used excessive force against him. 15 For the reasons discussed below, the Court finds Defendants argue that Carrasco used reasonable force in a 16 good-faith effort to maintain or restore order and, further, that 17 Plaintiff cannot demonstrate that Carrasco used force maliciously 18 and sadistically to cause harm. 19 Plaintiff suffered was minimal and that the force used was 20 proportional and necessary due to Plaintiff's refusal to comply 21 with orders. 22 videotape showed no visible injury, summary judgment would be 23 denied because the absence of serious injury does not end the 24 Eighth Amendment inquiry. 25 Plaintiff's evidence, a reasonable jury could find that Carrasco 26 acted wantonly, maliciously and for the express purpose of causing 27 harm. Defendants argue that any injury Even if the Court admitted the videotape, and the See Hudson, 503 U.S. at 7. Based on Direct evidence of malice and sadism is not required. 28 14 1 Accordingly, summary judgment is DENIED on this claim, and the 2 Court will retain supplemental jurisdiction over Plaintiff's state 3 law assault and battery claims against Carrasco. 4 5 CONCLUSION For the foregoing reasons, the Court orders as follows: 6 1. Defendants' motion to dismiss the Eighth Amendment 7 deliberate indifference claim against West is GRANTED without 8 prejudice to refiling if Plaintiff is able properly to exhaust his 9 prison grievance remedies. United States District Court For the Northern District of California 10 2. Plaintiff's supplemental state law negligence claim against 11 West is DISMISSED without prejudice to Plaintiff's raising such a 12 claim supplemental to a new federal complaint, or in state court, 13 if he is able to exhaust his state administrative remedies. 14 3. Defendants' motion to dismiss the Eighth Amendment excessive 15 force and state law assault and battery claims against Ferry is 16 DENIED as moot. 17 4. Plaintiff's motion to exclude the videotape is GRANTED. 18 5. Defendants' motion for summary judgment is GRANTED in part 19 and DENIED in part, as follows: 20 a. Summary judgment is GRANTED as to Plaintiff's Eighth 21 Amendment excessive force and state law assault and battery claims 22 against Ferry. 23 b. Summary judgment is DENIED as to Plaintiff's Eighth 24 Amendment excessive force claim against Carrasco. 25 retains supplemental jurisdiction over Plaintiff's state law 26 assault and battery claims against Carrasco. 27 28 6. The Court The Northern District of California has established a Pro Se Prisoner Settlement Program. Certain prisoner civil rights 15 1 cases may be referred to a magistrate judge for a settlement 2 conference. 3 Plaintiff's excessive force claim against Carrasco has survived 4 summary judgment. 5 Vadas for a settlement conference. 6 The Court finds that a referral is in order now that Thus, this case is REFERRED to Magistrate Judge The conference shall take place within one-hundred-twenty (120) 7 days of the date of this Order, or as soon thereafter as is 8 convenient to the magistrate judge's calendar. 9 Vadas shall coordinate a time and date for the conference with all Magistrate Judge United States District Court For the Northern District of California 10 interested parties and/or their representatives and, within ten 11 (10) days after the conclusion of the conference, file with the 12 Court a report regarding the conference. 13 The Clerk shall provide a copy of this Order, and copies of 14 documents from the court file that are not accessible 15 electronically, to Magistrate Judge Vadas. 16 7. 17 This Order terminates Docket nos. 29 and 40. 18 IT IS SO ORDERED. 19 The Clerk shall send a copy of this Order to Plaintiff. Dated: 3/30/2012 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 16

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