Ledesma v. State of Nevada et al
Filing
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ORDER adodpting and accepting 131 Report and Recommendation, granting in part and dening in part 124 Motion for Summary Judgment (see order for details); directing Clerk to enter judgment in favor of Defendants Vilora and Kyker in accordance with this order. Signed by Judge Miranda M. Du on 3/22/2016. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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LUIS LEDESMA
Case No. 3:13-cv-00102-MMD-WGC
Plaintiff,
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v.
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STATE OF NEVADA, et al,
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB
Defendants.
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I.
SUMMARY
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Before the Court is the Report and Recommendation of United States Magistrate
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Judge William G. Cobb (dkt. no. 131) (“R&R”), recommending that the Court grant in part
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and deny in part Defendants’ Motion for Summary Judgment (“Motion”) (dkt. no. 124). An
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objection to the R&R was timely filed by Defendants (dkt. no. 132).
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II.
BACKGROUND
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Plaintiff, who is proceeding pro se, is an inmate in the custody of the Nevada
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Department of Corrections. He asserts twenty-one (21) numbered counts arising out of
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alleged incidents at Southern Desert Correctional Center (“SDCC”). After screening
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pursuant to under 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on the
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following claims: count I for failure to protect based on an incident that occurred on
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March 22, 2011; count VI for retaliation on September 17, 2011, for tampering with his
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food due to Plaintiff’s exercise of his First Amendment right to complain about a prior
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alleged retaliatory harassment; count VII for First Amendment retaliation; counts VIII, IX
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and X for Eighth Amendment excessive force; count XI for Eighth Amendment deliberate
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indifference; and counts XIII and XVI for retaliation. (Dkt. no. 9.) The allegations relating
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to these claims are summarized in the Magistrate Judge’s R&R, which the Court adopts.
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(Dkt. no. 131 at 1-3.)
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III.
LEGAL STANDARD
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This Court “may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
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timely objects to a magistrate judge’s report and recommendation, then the court is
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required to “make a de novo determination of those portions of the [report and
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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
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to object, however, the court is not required to conduct “any review at all . . . of any issue
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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
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Indeed, the Ninth Circuit has recognized that a district court is not required to review a
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magistrate judge’s report and recommendation where no objections have been filed. See
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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard
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of review employed by the district court when reviewing a report and recommendation to
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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,
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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the
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view that district courts are not required to review “any issue that is not the subject of an
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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then
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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.
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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to
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which no objection was filed).
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“The purpose of summary judgment is to avoid unnecessary trials when there is
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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,
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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the
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pleadings, the discovery and disclosure materials on file, and any affidavits “show there
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is no genuine issue as to any material fact and that the movant is entitled to judgment as
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a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is
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“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could
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find for the nonmoving party and a dispute is “material” if it could affect the outcome of
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the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
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(1986). Where reasonable minds could differ on the material facts at issue, however,
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summary judgment is not appropriate. See id. at 250-51. “The amount of evidence
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necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to
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resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718
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F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S.
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253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts
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and draws all inferences in the light most favorable to the nonmoving party. Kaiser
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Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
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The moving party bears the burden of showing that there are no genuine issues
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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once
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the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting
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the motion to “set forth specific facts showing that there is a genuine issue for trial.”
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Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the
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pleadings but must produce specific evidence, through affidavits or admissible discovery
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material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404,
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1409 (9th Cir. 1991), and “must do more than simply show that there is some
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metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th
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Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
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(1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position
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will be insufficient.” Anderson, 477 U.S. at 252.
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IV.
DISCUSSION
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In response to Defendants’ Motion for Summary Judgment, the Magistrate Judge
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recommends denying summary judgment as to the following: count I as to Defendants
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Ponozzo and Trautman; counts VII, VIII and IX; and counts X and XI as to Defendants
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Lefler, Stevens, Daniel and Volden. (Dkt. no. 131.) The Magistrate Judge recommends
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granting summary judgment on the remaining counts. (Id.) Defendants objected to the
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recommendation to deny summary judgment. (Dkt. no. 132.) The Court will adopt the
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recommendation to grant summary judgment since neither party has objected to such
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recommendation. See Thomas, 474 U.S. at 149. The Court will address Defendants’
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objection.
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Defendants raise three primary general objections to the portions of the R&R that
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recommends denying summary judgment. First, Defendants argue that the Magistrate
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Judge “credits Plaintiff with the benefit of accepting his allegations as true” even though
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Plaintiff failed to satisfy his burden of offering evidence to support his assertion under
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Fed. R. Civ. P. 56(c)(1)(a) or put forth any evidence to oppose summary judgment. (Dkt.
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no. 132 at 2-3, 7, 12-13.) However, courts must consider a pro se party’s contentions
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offered in motions and pleadings as evidence in his opposition to the motion for
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summary judgment “where such contentions are based on personal knowledge and set
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forth facts that would be admissible in evidence, and where [he] attested under penalty
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of perjury that the contents of the motions or pleadings are true and correct.” Jones v.
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Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Plaintiff’s amended complaint is verified and
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he attested to the allegations in his amended complaint under penalty of perjury. (Dkt.
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no. 11 at 34.) Thus, the Magistrate Judge properly considered Plaintiff’s allegations.
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Second, Defendants object to the Magistrate Judge allowing certain claims to
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survive even though Plaintiff did not specifically refute the arguments raised in
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Defendants’ Motion. (Dkt. no. 132 at 3, 12.) Defendants rely on LR 7-2(d). Pro se
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litigants are of course required to follow the same rules of procedure that govern other
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litigants. United States v. Merrill, 746 F.2d 458, 465 (9th Cir.1984), cert. denied, 469 U.S.
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1165 (1985). However, just as dismissal of an action cannot be based solely on a
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plaintiff’s failure to file an opposition memo, it is not improper for the Court to evaluate
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the merits of a party’s argument despite a pro se litigant’s failure to specifically respond.
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See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (quoting Henderson v.
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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)) (When a district court considers dismissal
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of a case pursuant to a rule like Civil Local Rule 7.1(f)(3)(c), it is required to weigh: “(1)
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the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage
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its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
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disposition of cases [on] their merits; and (5) the availability of less drastic sanctions.”).
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Finally, Defendants assert that the Magistrate Judge improperly considered a
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theory for relief — failure to intervene by Defendants other than Brooks — that is not
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specifically alleged in the amended complaint. (Dkt. no. 132 at 7, 11, 12.) Defendants
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allege that Plaintiff did not specifically plead that Trautman failed to intervene in count I
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and Daniel and Volden failed to intervene in count X. (Dkt. no. 132 at 7, 12.) Courts must
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liberally construe documents filed by pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94
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(2007) (per curiam). “A pro se complaint, however inartfully pleaded, must be held to
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less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Estelle v.
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Gamble, 429 U.S. 97, 106 (1976)). Viewing Plaintiff’s amended complaint under this
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liberal pleading standard, Plaintiff sufficiently pleaded failure to protect claim against
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Trautman and excessive force claim against Daniel and Volden. The Magistrate Judge
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properly considered these claims.
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The Court will next address the additional arguments that are specific to some of
the counts which the Magistrate Judge recommends denying summary judgment.
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A.
Count I
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Defendants argue that the Magistrate Judge improperly imputes Defendants’
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awareness of a current danger based on Plaintiff’s prior classification in considering the
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second prong of a failure to protect claim. (Dkt. no. 132 at 5.) The second prong of this
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claim is a subjective element. Hearns v. Terhume, 413 F.3d 1036, 1040 (9th Cir. 2005);
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Lemire v. Cal. Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1074-78 (9th Cir. 2013). The
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plaintiff must establish that the officials were deliberately indifferent — that is, they
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disregarded their subjective awareness of the risk without reasonable justification.
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Lemire, 726 F.3d at 1077-78. It is not enough that officials were aware of facts from
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which they could have inferred the presence of an excessive risk; they must also “draw
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the inference.” Id. at 837. Circumstantial evidence, or the fact that the risk was obvious,
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may be sufficient to establish a prison official’s deliberate indifference. Cortez v. Skol,
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776 F.3d 1046, 1050 (9th Cir. 2015 (citation omitted).
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The Magistrate Judge found that a disputed issue of fact exists as to whether
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Ponozzo acted with deliberate indifference. The Magistrate Judge made this finding
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based on more than just Plaintiff’s allegation that Ponozzo knew Plaintiff was on
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protective custody because he was involved in Plaintiff’s classification hearing as
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Defendants suggest in their objection. The Magistrate Judge found that there is genuine
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material dispute as to whether Plaintiff actually requested to be placed on “walk alike”
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status and whether Unit 8 personnel, including Ponozzo, who were on regular duty in
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Plaintiff’s unit, knew that he was in protective custody because they observed him being
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in protective custody. (Dkt. no. 131 at 8-9.) The Court agrees with the Magistrate Judge
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that viewing this evidence in the light most favorable to Plaintiff, a rational trier of fact
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could find that Ponozzo was deliberately indifferent to satisfy the subjective prong.
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Defendants challenge the R&R’s finding that Ponozzo did not intercede in the
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attack after letting Plaintiff out of his cell. (Dkt. no. 132 at 6.) Plaintiff testified that
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Ponozzo and Trautman stood behind the gate while the assault occurred for about three
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to five minutes and did not immediately stop the assault; they called S&E and waited for
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S&E to arrive. (Dkt. no. 124 at 2; dkt. no. 124-1 at 6.) The Magistrate Judge did not
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improperly credit Plaintiff with making an argument that Plaintiff did not allege as
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Defendants contend. Defendants contend it was reasonable under that situation for
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Ponozzo and Trautman to wait, but that question must be left for the jury. A rational trier
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of fact could find that it was unreasonable for Ponozzo and Trautman not to intervene.
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B.
Counts VII and VIII
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Defendants argue that summary judgment should be granted on both the
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retaliation claim (count VII) and the excessive force claim (count VIII) because “they
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subjectively believed their actions were needed to preserve security.” (Dkt. no. 132 at 7.)
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They cite to evidence that Plaintiff admitted stating to Daniel on the return from the
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haircut that “What’s your problem?” and that Plaintiff then raised his hands palm out. (Id.)
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They argue that a rational jury would find that handcuffing Plaintiff was a reasonable
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reaction in light of Plaintiff’s comment and gesture. (Id.) Defendants further argue that
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the evidence does not support Plaintiff’s claim in counts VII and VIII that Brooks failed to
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intervene when Lefler and Daniel engaged in the alleged use of force. (Id. at 8.)
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The incident that gave rise to counts VII and VIII involved an alleged attack on
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Plaintiff. Plaintiff claims that the same day, after he filed an emergency grievance relating
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to tampering with his food tray, he got a haircut in the bubble area. (Dkt. no. 124-1 at
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12.) According to Plaintiff, Daniel and Lefler were verbally harassing him. (Id.) Once they
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got to his cell, Plaintiff turned around and asked, “gestured [his] arms” (where his hands
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were “open-palmed” and slight raised) and asked them “What’s your problem?” (Id. at
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13.) Plaintiff claims the officers then grabbed him and slammed him into the wall and
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pushed him against it and placed him in restraints. (Id.) He testified that Brooks was the
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one who grabbed him and put him against the wall, but Lefler placed the handcuffs on
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him. (Id.) Brooks walked away to ask for S&E to be called but Lefler and Daniel then
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slammed his face into the wall pressing his body against the wall. (Id.) Thus, according
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to Plaintiff, he was not merely handcuffed after he made the gesture with his arms.
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When a prison official stands accused of using excessive physical force in
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violation of the cruel and unusual punishment clause of the Eighth Amendment, the
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question turns on whether force was applied in a good-faith effort to maintain or restore
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discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v.
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McMillian, 503 U.S. 1, 7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).
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In determining whether the use of force was wanton and unnecessary, it is proper to
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consider factors such as the need for application of force, the relationship between the
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need and the amount of force used, the threat reasonably perceived by the responsible
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officials, and any efforts made to temper the severity of the forceful response. Id. at 7.
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Viewing the facts and drawing all reasonable inferences in Plaintiff’s favor, a
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rational trier of fact could find that Defendants Daniel, Lefler and Brooks did not have a
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good faith basis to believe that Plaintiff needed to be grabbed, pushed against the wall
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and placed in restraints after Plaintiff asked them, “What is your problem,” and gestured
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with his arms. These Defendants did not just handcuff him, as Defendants suggest, but,
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according to Plaintiff, they grabbed him and pushed him against the wall before placing
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him in restraints. Defendants also ignore Plaintiff’s allegations of verbal harassment that
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preceded the use of force, and the amount of force that was purportedly used. With
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respect to Daniel and Lefler, a rational trier of fact could find that they acted maliciously
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based on the use of additional force — Plaintiff testified they purportedly slammed his
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face and pressed him against the wall after he was already in handcuffs. (Dkt. no. 124-1
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at 13.)
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C.
Count IX
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Defendants assert two specific arguments in objecting to the Magistrate Judge’s
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recommendations. First, they reiterated the argument, which the Magistrate Judge
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rejected, that the injuries did not commensurate with Plaintiff’s claim of a 20 minute
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beating. (Dkt. no. 132 at 11-12.) Again, the Court must liberally construe Plaintiff’s pro se
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complaint such that his claim would survive even if the beating lasted less than 20
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minutes. Moreover, as the Magistrate Judge correctly noted, Plaintiff undisputedly
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suffered injuries regardless of the length of the attack. (Dkt. no. 131 at 18.) Defendants’
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argument that Plaintiff’s injuries were inconsistent with a 20 minute beating is
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unconvincing.
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Second, Defendants argue that they have offered evidence that Gibson, Smith,
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Espinosa and Volden were either not present or did not participate in use of force that
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gave rise to count IX.1 (Dkt. no. 132 at 9-11.) The incident involved Defendants either
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Defendants contend that that the Magistrate Judge suggests they cannot raise
alternative defenses by arguing a lack of evidence and pointing out deficiencies in
Plaintiff’s testimonies. (Dkt. no. 132 at 9.) The Court does not share Defendants’
interpretation of the R&R.
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beating or watching while Plaintiff was purportedly being beaten. (Dkt. no. 124-1 at 15-
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16.) Plaintiff’s testimony must be viewed in this context, and all reasonable inferences
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must be drawn in his favor as the non-moving party. Defendants offered a shift roster to
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show that Gibson was not at the prison at the time of the alleged beating. (Dkt. no. 124-
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8.) However, Plaintiff testified that Gibson was present during the incident and was
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talking to another officer and then walked in front and stopped. (Dkt. no. 124-1 at 15-16.)
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The question of whether Gibson was present during the incident presents a
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quintessential issue of disputed material fact that must be resolved by the trier of fact. As
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to the other Defendants, Plaintiff testified that (1) Smith (who he knows as Spivy) was in
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the second transfer cart but was “sitting down watching” and Plaintiff remembered Smith
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saying that he deserved it (id. at 16); (2) while Plaintiff had his face pushed on the cart,
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he was facing Espinosa “and the whole time Espinosa is just like ‘Oh, you’re going to
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die. Your mother is going to have to bury you, Look at you. She’s going to be crying.” (id.
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at 15); (3) Plaintiff knew Volden was present because Volden was standing next to Lefler
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before Lefler put his boot on the back of Plaintiff’s neck (id.). Viewing this testimony and
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drawing all inferences in the light most favorable to Plaintiff, a rational trier of fact could
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find that these Defendants were present and participated in the use of force.
In sum, the Court agrees with the Magistrate Judge’s recommendations and will
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adopt the R&R.
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V.
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CONCLUSION
It
is
therefore
ordered,
adjudged
and
decreed
that
the
Report
and
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Recommendation of Magistrate Judge William G. Cobb (dkt. no. 131) is accepted and
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adopted in its entirety.
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It is further ordered that Defendants’ Motion for Summary Judgment (dkt. no. 124)
is denied in part and granted is part as follows:
(1) The Motion is denied as to Defendants Ponozzo and Traustman in
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Count I and granted as to Defendant Vilora in Count 1;
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(2) The Motion is granted as to County VI;
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(3) The Motion is denied as to Count VII;
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(4) The Motion is denied as to County VIII;
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(5) The Motion is denied as to Count IX;
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(6) The Motion is granted as to Defendants Smith, Gibson and Brooks only
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in Count X, and denied as to Defendants Lefler, Stevens, Daniel and Volden in
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Count X;
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(7) The Motion is granted as to Defendants Smith, Gibson, and Brooks
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only in Count XI and denied as to Defendants Lefler, Stevens, Daniel and Volden
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in Count XI;
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(8) The Motion is granted as to Count XIII; and
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(9) The Motion is granted as to Count XVI (against Kyker).
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The Clerk is directed to enter judgment in favor of Defendants Vilora and Kyker in
accordance with this Order.
DATED THIS 22nd day of March 2016.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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