Walker v. Gower, et al.
Filing
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ORDER signed by Senior Circuit Judge J. Clifford Wallace on 6/29/11 GRANTING 44 Motion for Summary Judgment and TERMINATING WITH PREJUDICE this action. CASE CLOSED. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMEL WALKER,
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Case No. 2: 08-CV-2261 JCW
Plaintiff,
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vs.
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ORDER
R. GOWER, et al.,
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Defendants.
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On May 26, 2011, I directed Plaintiff Jamel Walker, who is a California
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state prisoner, to respond to the motion for summary judgment filed by Officer
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McMoran—the only remaining state defendant. Even though the motion has been
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pending since early April, and although I specifically “WARNED” Walker that his
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failure to respond might “be deemed a waiver” and that I could “grant the motion
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on that basis,” he still has not responded to Officer McMoran’s motion.
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“When the local rule does not require, but merely permits the court to grant
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a motion for summary judgment, the district court has discretion to determine
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whether noncompliance should be deemed consent to the motion.” Brydges v.
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Lewis, 18 F.3d 651, 652 (9th Cir. 1994). But, in exercising this discretion, I must
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be sure that the moving party’s summary judgment papers are sufficient to support
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the motion. Martinez v. Stanford, 323 F.3d 1178, 1181 (9th Cir. 2003). Even
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when the non-moving party fails to file a response, summary judgment is proper
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only if the moving papers demonstrate the absence of a genuine issue of material
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fact for trial. Id.; see also Fed. R. Civ. P. 56.
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After carefully reviewing the Officer McMoran’s motion, I conclude that
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there are no genuine issues of material fact that warrant further proceedings in this
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case. In Hudson v. McMillian, the Supreme Court held “that whenever prison
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officials stand accused of using excessive physical force . . . , the core judicial
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inquiry is . . . whether force was applied in a good-faith effort to maintain or
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restore discipline, or maliciously and sadistically to cause harm.” 503 U.S. 1, 6–7
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(1992). To determine “whether the use of force was wanton and unnecessary,” I
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must examine “the need for application of force, the relationship between that
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need and the amount of force used, the threat reasonably perceived by the
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responsible officials, and any efforts made to temper the severity of a forceful
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response.” Id. at 7 (internal quotation marks omitted).
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In this case, the undisputed evidence establishes that Walker was shot in the
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hip during a prison riot while he and a group of other inmates viciously attacked a
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defenseless prisoner, savagely kicking him in the head multiple times. Thus, the
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use of force, according to the undisputed facts, was necessary to put an end to the
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assault and to protect the life of a defenseless inmate during an out-of-control
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prison riot. On this record and considering the factors from McMillian, Walker’s
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Eighth Amendment claims necessarily fail. See id.; see also Whitley v. Albers, 475
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U.S. 312, 320–21 (1986) (holding that injuries to prisoners do not constitute cruel
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and unusual punishment when they are inflicted during a prison disturbance that
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“indisputably poses significant risks to the safety of inmates and prison staff”
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unless force was applied “maliciously and sadistically for the very purpose of
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causing harm” (internal quotation marks omitted)).
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It is therefore ordered that Officer McMoran’s motion for summary
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judgment is granted. The clerk of the court is directed to enter judgment in Officer
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McMoran’s favor and to terminate this action with prejudice.
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DATED: June 29, 2011
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/s/J. Clifford Wallace
J. CLIFFORD WALLACE
UNITED STATES CIRCUIT JUDGE
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