Johnson v. Gains et al

Filing 210

ORDER ADOPTING REPORT AND RECOMMENDATION 199 as modified, and overruling Johnson's objections to the Report and Recommendation; denying Johnson's 66 , 69 Motions for Summary Judgment; denying Johnson's 208 Motion for Preliminary Injunction; Signed by Judge Larry Alan Burns on 3/6/12.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY WAYNE JOHNSON,

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CASE NO. 09cv1312-LAB (POR)
Plaintiff,

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ORDER ADOPTING REPORTS
AND RECOMMENDATIONS;

vs.
ORDER DENYING PLAINTIFF’S
MOTIONS FOR SUMMARY
JUDGMENT [DOCKET NUMBERS
66 AND 69]; AND

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M. GAINS, et al.,

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ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

Defendant.

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Plaintiff Anthony Johnson, a prisoner in state custody, brought this action pursuant

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to 42 U.S.C. § 1983. His claims stem from a pepper spraying incident and the use of force

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by prison officers. On April 8, 2011, Johnson moved for summary judgment. Then on April

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14, 2011, he again moved for summary judgment on essentially the same grounds.

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The motions were referred to Magistrate Judge Louisa Porter for report and

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recommendation pursuant to 28 U.S.C. § 636. Judge Porter issued two reports and

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recommendations, the first on July 15, 2011 addressing the first-filed motion, and the second

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on February 16, 2012 (collectively, the “R&Rs”). The R&Rs find the summary judgment

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standard is not met, and recommend denying Johnson’s motions. Johnson has filed

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objections to both R&Rs.

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must

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determine de novo any part of the magistrate judge's disposition that has been properly

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objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The

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Court reviews de novo those portions of the R&R to which specific written objection is made.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

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Johnson’s objections to the first R&R argue that the R&R overlooked the supposedly

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undisputed fact that he had been pepper-sprayed and then left for two hours, that the motive

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for doing this was improperly punitive. The first R&R did not overlook this, however, but

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rather discussed it at length. The R&R assumed that Johnson could produce evidence

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showing he was left handcuffed after being pepper sprayed, but pointed out Defendants

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have also presented evidence that while Johnson’s behavior made pepper-spraying him

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necessary, and that while he was in the shower after being pepper sprayed, he belligerently

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resisted them, making it impractical or impossible to uncuff him. Defendants also present

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evidence that they gave him the opportunity to wash the pepper spray off, even though he

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was still handcuffed.

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The first R&R gives the wrong legal standard at one point. In considering Johnson’s

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argument that certain declarations are hearsay and thus inadmissible, the R&R says their

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allegations are sufficient. (First R&R, 6:26–7:4.) This is incorrect; at the summary judgment

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stage, Defendants are required to produce admissible evidence, and cannot rely on mere

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allegations. See Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019,

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1033 n.14 (9th Cir. 2008). The Court has, however, reviewed the objected-to declarations

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and finds they are not hearsay. The declarants in each case state they have personal

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knowledge of the facts stated in the challenged declarations. (Carpio Decl, ¶ 1; Smith Decl.,

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¶ 1; Palomera Decl., ¶ 1; Garza Decl, ¶ 1.) The declarations state facts from the point of view

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of a witness who saw or heard the events described. For instance, Palomera’s declaration

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says he observed Johnson being told to come out of the shower, refusing to do so, and
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becoming aggressive and verbally abusive. (Palomera Decl., ¶ 2.) Palomera also says

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observed Carpio telling Johnson to “cuff up,” and Johnson then refusing to do so and lunging

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at Carpio. (Id., ¶ 3.) Johnson’s charge that they don’t really have personal knowledge of

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these facts is insufficient, because the Court does not weigh evidence at this stage. See

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Nolan v. Heald College, 551 F.3d 1148, 1154 (9th Cir. 2009). The first R&R is therefore

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MODIFIED to include this reasoning.

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Johnson objects to the second R&R, saying it overlooked undisputed violations of his

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Fourth Amendment and Eighth Amendment rights. The R&R, however, merely pointed out

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that Johnson’s successive motion for summary judgment raised the same arguments and

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should be denied for the same reasons as set forth in the earlier R&R. Because the first

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R&R addresses these alleged violations, the objections have no merit.

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The Court therefore OVERRULES Johnson’s objections to the R&Rs, MODIFIES the

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first R&R as discussed above, and ADOPTS them as modified. Johnson’s motions for

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summary judgment (docket nos. 66 and 69) are DENIED.

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On February 27, 2012, Johnson filed a motion for an injunction requiring that he be

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transferred to another prison. He argues this is required under Cal. Penal Code § 5068, and

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that it will solve problems he has been experiencing concerning access to the prison law

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library. The library issue was apparently addressed by Magistrate Judge Porter’s order of

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February 24. The remaining issues are not before the Court, because the Fourth Amended

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Complaint doesn’t seek any remedy under Cal. Penal Code § 5068, nor does this state

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statute create any federally-protected interest the Court would have jurisdiction over. See

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Haywood v. Ramon, 2012 WL 43612, slip op. at *4 (E.D.Cal., Jan. 9, 2012) (no federally-

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protected liberty interest created by Cal. Penal Code § 5068). The motion for injunction

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(docket no. 208) is therefore DENIED.

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IT IS SO ORDERED.
DATED: March 6, 2012

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HONORABLE LARRY ALAN BURNS
United States District Judge
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