Moore v. Pantoja et al

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATION 71 of Magistrate Judge Charles Goodwin and denies defendant's amended motion for summary judgment 49 . Signed by Honorable Joe Heaton on 03/12/2018. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHARLES L. MOORE, II,
Plaintiff,
vs.
LT. PANTOJA,
Defendant.

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NO. CIV-15-688-HE

ORDER
Plaintiff Charles L. Moore II, a state prisoner appearing pro se, filed this § 1983
action against defendant Lt. Juan Pantoja and two other correctional officers at the
Oklahoma State Reformatory, Sgt. Matthew Harvey and Tina Mangalona, alleging a
violation of his Eighth Amendment rights. Consistent with 28 U.S.C. §636, the matter was
referred to Magistrate Judge Charles B. Goodwin for initial proceedings.

Plaintiff

dismissed his claims against the two other defendants on January 27, 2016, see Doc. #26,
p. 2,1 and only an excessive force claim against defendant Lt. Pantoja remains. The
magistrate judge has issued a Report and Recommendation (“Report”) recommending that
an amended motion for summary judgment filed by defendant Pantoja be denied.
Defendant Pantoja has filed an objection to the Report.
Plaintiff’s claim is based on an alleged incident that occurred on November 24,
2014. Plaintiff alleges that defendant Pantoja entered his cell while he was taking his heart
and thyroid medication, grabbed him by the throat and threw him violently to the ground.

1

References to documents are to the CM/ECF document and page number.

Plaintiff asserts that Pantoja let him stand, but then sprayed him with mace for twenty to
thirty seconds. Plaintiff claims he was “completely docile and uncombative” during the
entire episode. Doc. #1, p. 3.
In his motion for summary judgment, defendant Pantoja raises the affirmative
defense of qualified immunity.2 The magistrate judge concluded plaintiff alleged facts
supported by the record that, if established at trial, were sufficient to show defendant
violated his clearly established Eighth Amendment right to be free from excessive force.
In his objection defendant asserts that “[p]laintiff’s conclusory allegations are insufficient
to put a material fact in dispute concerning the November 2014 incident.” Doc. #72, p. 3.
As the magistrate judge pointed out, “[d]efendant has provided only an opposing account
of what happened and not the type of inarguably contradictory record that would allow the
Court to disregard Plaintiff’s verified allegations for qualified-immunity purposes.” Doc.
#71, p. 8.
Having performed a de novo review, the court agrees with the magistrate judge’s
conclusions and his analysis. Accordingly, it adopts the Report and Recommendation and
denies defendant’s amended motion for summary judgment [Doc. #49].

2

He also raised the defense that plaintiff failed to exhaust his administrative remedies,
which the court previously rejected. See Doc. #69.

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IT IS SO ORDERED
Dated this 12th day of March, 2018.

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