(PC) Carter v. Fernandez et al, No. 1:2008cv01841 - Document 89 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 5/24/2011 recommending that 76 MOTION for SUMMARY JUDGMENT be DENIED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/20/2011. (Lundstrom, T)
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(PC) Carter v. Fernandez et al Doc. 89 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 IVAN RAY CARTER, JR., 10 CASE NO. 1:08-CV-01841-AWI-DLB PC Plaintiff, 11 FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE DENIED v. 12 A. FERNANDEZ, et al., (DOC. 76) 13 Defendants. OBJECTIONS DUE WITHIN TWENTY-ONE DAYS 14 / 15 16 Findings And Recommendations 17 I. Background 18 Plaintiff Ivan Ray Carter, Jr. (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 21 on Plaintiff’s complaint against Defendants A. Fernandez, R. Reynaga, and H. Carillo for 22 excessive force in violation of the Eighth Amendment, and against Defendant L. Ceaser and D. 23 Jones for failure to provide adequate medical care in violation of the Eighth Amendment. 24 Pending before the Court is Defendants’ motion for summary judgment, filed November 17, 25 2010. Defs.’ Mot. Summ. J., Doc. 76. Plaintiff filed his opposition on April 26, 2011.1 Pl.’s 26 27 28 1 Plaintiff was informed of the requirements for opposing a motion for summary judgment by a Court order on May 6, 2009. Second Informational Order, Doc. 12; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988). 1 Dockets.Justia.com 1 Opp’n, Doc. 88. No reply was timely filed. The matter is submitted pursuant to Local Rule 2 230(l). 3 II. Summary Judgment Standard 4 Summary judgment is appropriate when it is demonstrated that there exists no genuine 5 dispute as to any material fact, and that the moving party is entitled to judgment as a matter of 6 law. Fed. R. Civ. P. 56(a).2 Under summary judgment practice, the moving party 7 8 9 always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 11 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 12 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on 13 file.’” Id. at 324. Indeed, summary judgment should be entered, after adequate time for 14 discovery and upon motion, against a party who fails to make a showing sufficient to establish 15 the existence of an element essential to that party's case, and on which that party will bear the 16 burden of proof at trial. Id. at 322. “[A] complete failure of proof concerning an essential 17 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In 18 such a circumstance, summary judgment should be granted, “so long as whatever is before the 19 district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 20 56(c), is satisfied.” Id. at 323. 21 If the moving party meets its initial responsibility, the burden then shifts to the opposing 22 party to establish that a genuine dispute as to any material fact actually does exist. Matsushita 23 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 24 In attempting to establish the existence of this factual dispute, the opposing party may not 25 rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the 26 form of affidavits, and/or admissible discovery material, in support of its contention that the 27 28 2 The Federal Rules of Civil Procedure were updated effective December 1, 2010. 2 1 dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must 2 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 3 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty 4 Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2002); T.W. Elec. 5 Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 6 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 7 nonmoving party, Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Wool v. 8 Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 9 In the endeavor to establish the existence of a factual dispute, the opposing party need not 10 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 11 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 12 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 13 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 14 Matsushita, 475 U.S. at 587 (quoting former Rule 56(e) advisory committee’s note on 1963 15 amendments). 16 In resolving a motion for summary judgment, the court examines the pleadings, 17 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 18 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 19 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 20 court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United 21 States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not 22 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 23 which an inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 124424 45 (E. D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). 25 Finally, to demonstrate a genuine dispute, the opposing party “must do more than simply 26 show that there is some metaphysical doubt as to the material facts. . . .Where the record taken as 27 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 28 issue for trial.’” Matsushita, 475 U.S. at 586-87 (citations omitted). 3 1 III. Statement Of Facts3 2 On April 13, 2007, Plaintiff was a CDCR inmate incarcerated at Kern Valley State 3 Prison’s B yard (“KVSP”). Under prison regulations, inmates must promptly and courteously 4 obey all written and verbal orders and instructions from staff. See Cal. Code Regs. tit. 15, § 5 3005(b). When an inmate does not comply with a lawful order, an officer may use reasonable 6 force to gain compliance with the order. Id. at § 3268(a)(1). Per CDCR regulations defining 7 “reasonable force,” reasonable force includes, but is not necessarily limited to, “verbal 8 persuasion or orders; physical strength and holds; chemical agents and/or other immobilization 9 devices.” Id. at § 3268(a)(6). 10 On April 13, 2007, Defendants Correctional Officers Carillo, Fernandez, and Reynaga 11 were all assigned to KVSP’s B yard. On April 13, 2007, at approximately 1:10 p.m., Building 5 12 of B yard was being recalled from the yard. Per KVSP policy, all inmates in B yard are to dress 13 down to their boxers and be searched when going to and returning from yard. On April 13, 14 2007, during yard recall at approximately 1:10 p.m., Defendants Fernandez, Carillo and Reynaga 15 saw Plaintiff approaching the door of Building 5. 16 Plaintiff was fully dressed in state-issued blue jeans and shirt, carrying a stack of books 17 and envelopes. When Plaintiff was approximately two feet away from Defendant Fernandez and 18 the B Facility door, Defendant Fernandez ordered Plaintiff to strip down to his boxers. 19 Defendant Fernandez issued the strip-down order to Plaintiff because Plaintiff was attempting to 20 enter B Facility fully clothed in violation of prison policy. Defendants contend that Plaintiff 21 responded in an aggressive tone, “What the fuck am I suppose to do with my stuff!” Plaintiff 22 23 24 25 26 27 28 3 All facts are considered undisputed, unless otherwise noted. Pursuant to Local Rule 260(b) and Federal Rule of Civil Procedure 56(e), all disputes with the movant’s statement of facts must be supported with citation to evidence. See L. R. 260(b) (parties opposing Statement of Undisputed Facts shall deny those that are disputed, “including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial”). Plaintiff does not provide a list of facts with which he admits or denies Defendant’s statement of facts. Plaintiff’s verified complaint may be treated as an opposing affidavit to the extent that it is verified and sets forth admissible facts (1) within Plaintiff’s personal knowledge and not based merely on Plaintiff’s belief and (2) to which Plaintiff is competent to testify. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Johnson v. Meltzer, 134 F.3d 1393, 1399 1400 (9th Cir. 1998); McElyea v. Babbitt, 833 F.2d 196, 197 98 (9th Cir. 1987); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). The Court will consider only those facts and evidence that are relevant to resolving Defendant’s motion for summary judgment. 4 1 contends that Defendant Fernandez approached Plaintiff in a hostile manner and with an 2 aggressive tone, instructing Plaintiff “to take his fucking clothes off, you know the fucking 3 rules.” Pl.’s Compl. ¶ 10. Plaintiff contends that he set his belonging on the floor. Pl.’s Compl. 4 ¶ 11. Defendants contend that Plaintiff threw the stack of books and envelopes on the floor. 5 Defendants contend that one of Plaintiff’s books hit Defendant Fernandez’s foot. Defendants 6 contend that Plaintiff threw the stack of books with enough force that when the book hit 7 Defendant Fernandez’s foot it caused pain. Defendants contend that the books and papers on the 8 ground created a potential obstacle for Defendant Fernandez. Defendant Fernandez approached 9 Plaintiff and with his right foot moved the stack of books and papers on the ground to his left. 10 Defendant Fernandez ordered Plaintiff to turn around and cuff-up. Plaintiff contends that he 11 complied. Pl.’s Compl. ¶ 11. Plaintiff contends that he began to get undressed, and since 12 Plaintiff was not moving fast enough, Defendant Fernandez kicked. Pl.’s Compl. ¶ 10. 13 Defendants contend that Plaintiff made no effort to comply with Defendant Fernandez’s order. 14 Defendants contend that Plaintiff aggressively and loudly stated that he would not be cuffed up. 15 Defendant Fernandez took a hold of Plaintiff’s left arm in preparation to place Plaintiff in 16 handcuffs. It is here that Defendants and Plaintiff’s versions of events greatly differ. 17 Plaintiff contends that Defendant Fernandez began to apply pressure by squeezing 18 Plaintiff’s arm and hand, causing undue pain and discomfort. Plaintiff contends that he turned 19 his head to the left to see what the problem was, at which point Defendant Fernandez threw 20 Plaintiff to the ground and began to assault Plaintiff. Plaintiff contends that Defendants Reynaga 21 and Carillo assisted Defendant Fernandez in the assault by dragging Plaintiff’s head on the 22 ground causing three severe abrasions to Plaintiff’s head with active bleeding. Plaintiff contends 23 that he was repeatedly kicked and struck by blows, and kicked in his left eye, causing slight 24 swelling. Defendant Reynaga and others kicked Plaintiff repeatedly in his sides while Defendant 25 Carrillo held Plaintiff after he had already been subdued and in mechanical restraints. Plaintiff 26 contends that he suffered severe abrasions and a fractured rib. 27 Defendants contend that Plaintiff broke Defendant Fernandez’s hold on his left arm by 28 turning around and lunging towards Defendant Fernandez’s legs in a tackling motion. 5 1 Defendants contend that in an attempt to maintain control over Plaintiff, Defendant Fernandez 2 placed both of his hands on Plaintiff’s back and put his upper body on top of Plaintiff’s back to 3 force him down to the ground. Defendants contend that as Plaintiff and Defendant Fernandez fell 4 to the ground, Plaintiff’s face and forehead struck the ground. Defendants contend that Plaintiff 5 landed on the ground face-down with Defendant Fernandez on top of him with his upper torso on 6 Plaintiff’s back. Defendants contend that Plaintiff kept resisting Defendant Fernandez’s hold by 7 jerking his head and wriggling his body on the ground. Defendants contend that Defendant 8 Reynaga then assisted Defendant Fernandez by cuffing and placing leg restraints on Plaintiff 9 while Defendant Fernandez continued to hold Plaintiff down on the ground. Defendants contend 10 that Officer Williams and Defendant Reynaga then escorted Plaintiff to the Facility B program 11 office medical evaluation and administrative segregation placement. Defendant Fernandez then 12 prepared CDC 115, Rules Violation Report, charging Plaintiff with battery on a peace officer 13 resulting in use of force. After a hearing on the 115 charges, Plaintiff was found guilty. 14 Defendants contend that they believed that Plaintiff’s refusal to dress down to his boxers, 15 refusal to turn around and cuff up, throwing his books and papers to the ground, and physical 16 resistance when Defendant Fernandez attempted to cuff him up created a threat to safety of the 17 prison, staff and inmates. Defendants believe that Defendant Fernandez used the smallest amount 18 of force necessary to subdue Plaintiff. Defendant Carillo contends that he never touched 19 Plaintiff. Defendants contend that the only force Defendant Reynaga used was to use his body 20 weight to maintain control over Plaintiff while he placed Plaintiff in restraints. 21 Following the incident, Plaintiff was escorted to the program office for medical 22 evaluation. Defendant Nurse Ceaser evaluated Plaintiff in the B Facility medical clinic. 23 Defendant Ceaser contends that she asked Plaintiff what happened, to which Plaintiff responded, 24 “No comment.” Plaintiff contends that he told Defendant Ceaser he was hurt, and complained of 25 shortness of breath and pain when inhaling, and that his rib injury was visibly protruding. Pl.’s 26 Compl. ¶¶ 18-22. Plaintiff contends that Defendant Ceaser provided no medical treatment. 27 Upon examination, Defendant Ceaser contends that she saw that Plaintiff had four 28 scratches: two on his head, one on his elbow, and one on his knee. Defendant Ceaser contends 6 1 that the two scratches on Plaintiff’s knee had active bleeding. Defendant Ceaser contends that 2 she cleaned each scratch with gauze and sterilized water, and the two scratches on Plaintiff’s 3 head stopped bleeding. Defendants contend that Plaintiff did not require any further medical 4 treatment. Defendants contend that Plaintiff did not suffer an eye or rib injury as a result of this 5 incident. Defendant Jones contends that he did not see Plaintiff on April 13, 2007. Plaintiff 6 contends that he informed Defendant Jones of his pain and that his rib was protruding, and 7 received no results, instead being told to submit a sick call slip if he wanted to see a doctor. Pl.’s 8 Compl. ¶¶ 19-22. 9 IV. Analysis 10 A. 11 Defendants Carillo, Reynaga, and Fernandez contend that Plaintiff’s claim of excessive Favorable Termination Rule 12 force is barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994). 13 Where a § 1983 action seeking damages alleges constitutional violations that would necessarily 14 imply the invalidity of the conviction or sentence, the prisoner must establish that the underlying 15 sentence or conviction has been invalided on appeal, by a habeas petition, or other similar 16 proceeding. Id. at 483-87. The favorable termination rule applies to prisoner disciplinary 17 proceedings. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997) (holding that claim of for 18 monetary and declaratory relief challenging validity of procedures used to deprive prisoner of 19 good-time credits is not cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 20 81-82 (2005) (explaining that “a state prisoner’s § 1983 action is barred (absent prior 21 invalidation) no matter the relief sought (damages or equitable relief), no matter the target of 22 the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) if success 23 in that action would necessarily demonstrate the invalidity of confinement or its duration.”) 24 (emphasis in original). 25 Defendants contend that Plaintiff’s claim of excessive force arises from the same incident 26 which resulted in Plaintiff’s conviction for battery of a peace officer. Mem. P. & A. Support 27 Mot. Summ. J. 6:20-9:22. Thus, Defendants contend, Plaintiff’s claim fails pursuant to the 28 favorable termination rule of Heck. Id. Plaintiff’s opposition is not informative. 7 1 However, Defendants’ argument is unavailing. Defendants have not demonstrated that 2 Plaintiff’s possible success in this § 1983 action would necessarily affect Plaintiff’s length of 3 confinement. See Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003) (holding that “the 4 favorable termination rule does not apply to § 1983 suits challenging a disciplinary hearing or 5 administrative sanction that does not affect the overall length of the prisoner’s confinement”); see 6 also Wilkinson, 544 U.S. at 81-82. There is no showing that Plaintiff lost good-time credits or 7 otherwise had his length of confinement affected as a result of his conviction for the CDC 115 8 charge of battery. Without such showing, the favorable termination rule is not applicable. See 9 Ramirez, 334 F.3d at 856 (finding that “nothing in [Preiser v. Rodriguez, 411 U.S. 475 (1973)], 10 Heck, or Edwards holds that prisoners challenging the conditions of their confinement are 11 automatically barred from bringing suit under § 1983 without first obtaining a writ of habeas 12 corpus. Rather, the applicability of the favorable termination rule turns solely on whether a 13 successful § 1983 action would necessarily render invalid a conviction, sentence, or 14 administrative sanction that affected the length of the prisoner's confinement.”). Accordingly, 15 Defendants’ argument fails, and Defendants’ motion for summary judgment on this ground 16 should be denied. 17 B. 18 Defendants Carillo, Reynaga, and Fernandez next contend that their use of force was Excessive Force 19 reasonable under the circumstances. “What is necessary to show sufficient harm for purposes of 20 the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim 21 at issue . . . .” Hudson v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an 22 Eighth Amendment claim is . . . contextual and responsive to contemporary standards of 23 decency.” Id. (internal quotation marks and citations omitted). The malicious and sadistic use of 24 force to cause harm always violates contemporary standards of decency, regardless of whether or 25 not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 26 2002) (holding that Eighth Amendment excessive force standard examines de minimis uses of 27 force, not de minimis injuries)). However, not “every malevolent touch by a prison guard gives 28 rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition 8 1 of cruel and unusual punishments necessarily excludes from constitutional recognition de 2 minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the 3 conscience of mankind.” Id. at 9-10 (internal quotations marks and citations omitted). 4 “[W]henever prison officials stand accused of using excessive physical force in violation 5 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was 6 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 7 cause harm.” Id. at 6-7. “In determining whether the use of force was wanton and unnecessary, 8 it may also be proper to evaluate the need for application of force, the relationship between that 9 need and the amount of force used, the threat reasonably perceived by the responsible officials, 10 and any efforts made to temper the severity of a forceful response.” Id. at 7 (internal quotation 11 marks and citations omitted). “The absence of serious injury is . . . relevant to the Eighth 12 Amendment inquiry, but does not end it.” Id 13 14 1. De Minimis Force Defendants contend that the only medical evidence indicates that Plaintiff suffered only 15 four superficial scratches. Defs.’ Mem. P. & A. 11:7-24. Defendants thus contend that the use of 16 force was de minmis. Id. If the Court were to only examine Defendants’ version of events, this 17 may be so. However, the evidence of the opposing party is to be believed, Anderson, 477 U.S. at 18 255, and all reasonable inferences that may be drawn from the facts placed before the court must 19 be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587. Here, Plaintiff in his 20 verified complaint declared that as a result of the alleged assault by Defendants, he suffered three 21 severe abrasions to his head which actively bled, and a protruding rib, which caused him pain. 22 Defendants contend that Plaintiff may not provide a medical opinion. Defs.’ Mem. P. & 23 A. 11:7-24. However, Plaintiff does not need medical knowledge to provide a lay opinion 24 regarding whether he suffered abrasions to his head which actively bled and a protruding rib 25 which caused him pain. See Fed. R. Evid. 701 (lay witness may form opinions rationally based 26 on perception of the witness and not based on scientific, technical, or other specialized 27 knowledge). Drawing all reasonable inferences in favor of Plaintiff as the opposing party, the 28 Court finds that there is a genuine dispute of material fact as to whether Defendants’ use of force 9 1 was de minimis. Defendants’ motion for summary judgment on this ground should be denied. 2 3 2. Excessive Force Defendants next contend that the use of force was not excessive under the circumstances. 4 Defs.’ Mem. P. & A. Support Mot. Summ. J. 11:26-14:5. Again, however, Plaintiff in his 5 verified complaint provides evidence to the contrary. Plaintiff contends that after Defendant 6 Fernandez grabbed Plaintiff’s left arm, Defendant Fernandez began to apply pressure by 7 squeezing Plaintiff’s arm and hand, causing undue pain and discomfort. Plaintiff contends that 8 he turned his head to the left to see what the problem was, at which point Defendant Fernandez 9 threw Plaintiff to the ground and began to assault Plaintiff. Plaintiff contends that Defendants 10 Reynaga and Carillo assisted Defendant Fernandez in the assault by dragging Plaintiff’s head on 11 the ground causing three severe abrasions to Plaintiff’s head with active bleeding. Plaintiff 12 contends that he was repeatedly kicked and struck by blows, and kicked in his left eye, causing 13 slight swelling. Defendant Reynaga and others kicked Plaintiff repeatedly in his sides while 14 Defendant Carrillo held Plaintiff after he had already been subdued and in mechanical restraints. 15 Plaintiff contends that he suffered severe abrasions and a fractured rib. Drawing all reasonable 16 inferences in favor of the non-moving party, the Court finds that there is a genuine dispute of 17 material fact as to whether Defendants’ use of force was excessive. Defendants’ motion for 18 summary judgment on this ground should be denied. 19 20 3. Defendant Carillo Defendant Carillo contends that there is no evidence to suggest that he failed to protect 21 Plaintiff from harm. Defs.’ Mem. P. & A. Support Mot. Summ. J. 14:7-17:12. However, as 22 seen above, Plaintiff has presented evidence to indicate that Defendant Carillo was an active 23 participant in assaulting Plaintiff. Drawing all reasonable inferences in favor of the non-moving 24 party, the Court finds that there is a genuine dispute of material fact as to whether Defendant 25 Carillo violated Plaintiff’s Eighth Amendment rights. Defendant’s motion for summary 26 judgment on this ground should be denied. 27 28 10 1 C. 2 Defendants Ceaser and Jones contend that they did not violate Plaintiff’s Eighth Medical Care 3 Amendment rights regarding his medical care. Defs.’ Mem. P. & A. Support Mot. Summ. J. 4 20:6-12. The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution 5 does not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation 6 and citation omitted). A prisoner’s claim of inadequate medical care does not rise to the level of 7 an Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the 8 ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with 9 deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) 10 (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate 11 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 12 must be, in objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. 13 Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[] 14 an excessive risk to inmate health or safety . . . .” Id. at 837. 15 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under 16 this standard, the prison official must not only ‘be aware of the facts from which the inference 17 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 18 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have 19 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 20 matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 21 1188 (9th Cir. 2002)). 22 Defendants contend that Defendant Jones was not liable as he was not involved in 23 treating Plaintiff. Plaintiff presented evidence indicating that he informed Defendant Jones of his 24 pain and that his rib was protruding, and received no results, instead being told to submit a sick 25 call slip if he wanted to see a doctor. This is sufficient to draw the inference that Plaintiff had 26 made Defendant Jones aware of a serious risk to his health, and that Defendant Jones disregarded 27 it. Drawing all reasonable inferences in favor of the non-moving party, the Court finds that there 28 is a genuine dispute of material fact as to whether Defendant Jones violated Plaintiff’s Eighth 11 1 Amendment rights. 2 Defendants contend that Plaintiff had the opportunity to indicate his rib injury to 3 Defendant Ceaser, but did not do so. However, Plaintiff has presented evidence that he did 4 inform Defendant Ceaser of his injuries and pain, but that she failed to provide any medical care. 5 This is sufficient to draw the inference that Plaintiff had made Defendant Ceaser aware of a 6 serious risk to his health, and that Defendant Ceaser disregarded it.4 Drawing all reasonable 7 inferences in favor of the non-moving party, the Court finds that there is a genuine dispute of 8 material fact as to whether Defendant Ceaser violated Plaintiff’s Eighth Amendment rights. 9 Defendants’ motion for summary judgment should be denied on this ground. 10 D. 11 Defendants contend that they are entitled to qualified immunity. Defs.’ Mem. P. & A. Qualified Immunity 12 Support Mot. Summ. J. 17:14-18:16; 22:7-16. Government officials enjoy qualified immunity 13 from civil damages unless their conduct violates “clearly established statutory or constitutional 14 rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 15 818 (1982). In ruling upon the issue of qualified immunity, one inquiry is whether, taken in the 16 light most favorable to the party asserting the injury, the facts alleged show the defendant’s 17 conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in 18 part by Pearson v. Callahan, 129 S. Ct. 808, 813 (2009) (“Saucier procedure should not be 19 regarded as an inflexible requirement”). The other inquiry is whether the right was clearly 20 established. Saucier, 533 U.S. at 201. The inquiry “must be undertaken in light of the specific 21 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is 22 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 23 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 24 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). 25 26 27 28 4 The declaration by Chief Medical Officer Lopez is unavailing here. Defendant Lopez declares that Plaintiff’s rib injury is a pre existing injury from a gunshot wound he had suffered, and should not be causing any pain. Defs.’ Mot. Summ. J., S. Lopez Decl. ¶ 9, Doc. 76 7. Plaintiff provides evidence to the contrary in the form of his verified complaint. Pl.’s Compl. ¶¶ 18 23. Plaintiff may provide a lay opinion as to whether his rib was protruding and causing pain. See Fed. R. Evid. 701. 12 1 In resolving these issues, the court must view the evidence in the light most favorable to plaintiff 2 and resolve all material factual disputes in favor of plaintiff. Martinez v. Stanford, 323 F.3d 3 1178, 1184 (9th Cir. 2003). Qualified immunity protects “all but the plainly incompetent or 4 those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 5 Here, based on the evidence presented, Defendants are not entitled to qualified immunity. 6 Drawing all reasonable inferences in favor of Plaintiff as the non-moving party, there is a 7 genuine dispute of material fact as to Plaintiff’s claims for excessive force and deliberate 8 indifference to a serious medical need. The facts alleged, when construed in the light most 9 favorable to Plaintiff, demonstrate a violation of the Eighth Amendment by Defendants. Such 10 Eighth Amendment rights are clearly established. See, e.g., Hudson, 503 U.S. at 8 (excessive 11 force); Farmer, 511 U.S. at 834 (deliberate indifference). 12 IV. Conclusion And Recommendation 13 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for 14 summary judgment, filed November 17, 2010, should be DENIED. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty17 one (21) days after being served with these Findings and Recommendations, the parties may file 18 written objections with the Court. The document should be captioned “Objections to Magistrate 19 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 21 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 22 23 IT IS SO ORDERED. Dated: May 24, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 13