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)
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)
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days of the date of this Order, or as soon thereafter as is
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convenient to the magistrate judge's calendar.
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Vadas shall coordinate a time and date for the conference with all
Magistrate Judge
United States District Court
For the Northern District of California
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interested parties and/or their representatives and, within ten
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(10) days after the conclusion of the conference, file with the
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Court a report regarding the conference.
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The Clerk shall provide a copy of this Order, and copies of
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documents from the court file that are not accessible
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electronically, to Magistrate Judge Vadas.
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7.
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This Order terminates Docket nos. 29 and 40.
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IT IS SO ORDERED.
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The Clerk shall send a copy of this Order to Plaintiff.
Dated: 3/30/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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