(PC) McCoy v. Ramirez et al, No. 1:2013cv01808 - Document 120 (E.D. Cal. 2018)

Court Description: ORDER DIRECTING Clerk to Assign a District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Non-Cognizable Claims; FINDINGS and RECOMMENDATIONS to Grant Defendant's Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 3/10/18. Objections to F&R Due Within Fourteen Days. The new case number is 1:13-cv-01808-DAD-MJS (PC). (Marrujo, C)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LAKEITH LEROY MCCOY, 10 11 12 CASE NO. 1:13-cv-01808-MJS (PC) Plaintiff, ORDER DIRECTING CLERK TO ASSIGN A DISTRICT JUDGE v. J. RAMIREZ, et al., 13 Defendants. 14 FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS (ECF No. 31) 15 FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 17 (ECF No. 102) 18 FOURTEEN DAY OBJECTION DEADLINE 19 20 21 22 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 23 rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate 24 Judge jurisdiction. (ECF No. 6.) Defendant Ramirez has appeared in the action and also 25 has consented. (ECF No. 70.) The remaining defendants have neither appeared nor 26 consented.The matter is before the Court following remand from the Ninth Circuit. (ECF 27 No. 117.) 28 1 I. Procedural History 2 Plaintiff initiated this action on November 8, 2013 with the filing of his initial 3 complaint raising a litany of claims. (ECF No. 1.) The undersigned screened the 4 complaint and dismissed it with leave to amend. (ECF No. 9.) 5 Plaintiff filed a first amended complaint on March 21, 2104. (ECF No. 10.) The 6 undersigned concluded that the complaint stated a cognizable Eighth Amendment 7 excessive force claim against Defendant Ramirez, but no other claims. (ECF No. 12.) 8 Plaintiff was given a further opportunity to amend. He instead filed an unauthorized 9 interlocutory appeal. (ECF No. 14.) That appeal was dismissed for lack of jurisdiction. 10 (ECF No. 17.) 11 Plaintiff filed his second amended complaint on June 22, 2015. (ECF No. 31.) The 12 undersigned once again screened the complaint. (ECF No. 33.) The undersigned found 13 a cognizable Eighth Amendment excessive force claim against Defendant Ramirez, but 14 no other cognizable claims. Service was initiated on Ramirez; the remaining claims were 15 dismissed with prejudice for failure to state a claim. (Id.) Plaintiff again filed an 16 unauthorized interlocutory appeal. (ECF No. 38.) That appeal, too, was dismissed. (ECF 17 No. 44.) 18 On November 19, 2015, Ramirez sought an extension of time to file a responsive 19 pleading and moved to revoke Plaintiff’s in forma pauperis status. (ECF Nos. 47, 48.) 20 The motion later was withdrawn (ECF No. 53), and, on February 18, 2016, Ramirez 21 answered (ECF No. 57). 22 The matter proceeded to discovery. (ECF No. 58.) On April 1, 2016, Ramirez filed 23 a motion for summary judgment on the merits of the claim. The undersigned denied the 24 motion without prejudice under Federal Rule of Civil Procedure 56(d) to allow Plaintiff 25 additional time to pursue discovery. (ECF No. 73.) 26 On March 15, 2017, Ramirez renewed his motion for summary judgment. (ECF 27 No. 102.) On May 22, 2017, Plaintiff filed his opposition. (ECF No. 110.) On May 30, 28 2 1 2017, Ramirez filed his reply. (ECF No. 111.) On June 7, 2017, the undersigned granted 2 the motion for summary judgment and the matter was closed. (ECF No. 112.) 3 4 Plaintiff appealed. (ECF No. 114.) On February 23, 2018, the Ninth Circuit vacated and remanded, stating: 5 McCoy and defendant Ramirez consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). The magistrate judge, however, screened and dismissed claims against other named defendants in the action before those defendants had been served. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A. Because all parties, including unserved defendants, must consent to proceed before the magistrate judge for jurisdiction to vest, Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), we vacate the magistrate judge’s orders and remand for further proceedings. 6 7 8 9 10 11 (ECF No. 117.) 12 The Ninth Circuit’s mandate issued on March 19, 2018. (ECF No. 119.) 13 In light of the Ninth Circuit’s remand order broadly vacating the undersigned’s 14 “orders” in this case, the Court must re-screen Plaintiff’s pleading and must revisit the 15 motions for summary judgment. 16 II. Findings and Recommendations on Second Amended Complaint1 17 A. 18 The Court is required to screen complaints brought by prisoners seeking relief 19 Screening Requirement against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 21 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 22 relief may be granted, or that seek monetary relief from a defendant who is immune from 23 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 24 25 26 27 28 1 Plaintiff’s original complaint and first amended complaint were dismissed with leave to amend. Courts in this district have upheld a Magistrate Judge's authority to screen complaints, so long as any dismissal is not dispositive and leave to amend is granted. E.g., Robinson v. Adams, No. 1:08–CV–1380 AWI GSA PC, 2009 WL 1953167, at *1-2 (E.D. Cal. July 7, 2009). Williams did not address this issue. Accordingly, the Court does not read the Ninth Circuit’s remand as vacating these earlier screening orders. In any event, as these complaints have been superseded by the second amended complaint, the merits of the claims as stated therein will not be addressed. 3 1 thereof, that may have been paid, the court shall dismiss the case at any time if the court 2 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 3 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 B. 5 Section 1983 “provides a cause of action for the deprivation of any rights, 6 privileges, or immunities secured by the Constitution and laws of the United States.” 7 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 8 Section 1983 is not itself a source of substantive rights, but merely provides a method for 9 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 10 Pleading Standard (1989). 11 To state a claim under § 1983, a plaintiff must allege two essential elements: 12 (1) that a right secured by the Constitution or laws of the United States was violated and 13 (2) that the alleged violation was committed by a person acting under the color of state 14 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 15 1243, 1245 (9th Cir. 1987). 16 A complaint must contain “a short and plain statement of the claim showing that 17 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 18 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 21 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 22 that is plausible on its face.” Id. Facial plausibility demands more than the mere 23 possibility that a defendant committed misconduct and, while factual allegations are 24 accepted as true, legal conclusions are not. Id. at 677-78. Plaintiff’s Allegations 25 C. 26 Plaintiff is incarcerated at Kern Valley State Prison. The acts giving rise to his 27 complaint occurred at California Correctional Institution (“CCI”) in Tehachapi, California. 28 4 1 He names the following defendants: Captain K. Allen, Lieutenant E. Coontz, Associate 2 Warden J. Gutierrez, and Correctional Officers J. Ramirez and C. Riley. 3 His allegations may be summarized essentially as follows: 4 On July 10, 2013, Plaintiff was escorted to the prison law library, where he had a 5 verbal disagreement with non-party Officer Cacciola. Defendants Ramirez and Mullins 6 later approached the library to return Plaintiff to his cell but first stopped to converse with 7 Officer Cacciola in Cacciola’s office. When they came to escort Plaintiff, Mullins placed 8 the handcuffs too tight. Plaintiff complained. Plaintiff exited the cell and Ramirez grabbed 9 him and told him to “hold the fuck up.” Plaintiff complied. Ramirez took out his baton and 10 Plaintiff was escorted outside. Ramirez asked Plaintiff, “What the fuck is your problem? 11 You have an attitude with my partner and you’re suing Cacciola.” Plaintiff tried to diffuse 12 the situation because he had previously overheard Defendant Ramirez say he wanted to 13 get into an altercation with an inmate so he could fake injury and get paid leave. Plaintiff 14 assured the officers he didn’t want any problems. Mullins stated, “I did not take it like you 15 were mad or anything.” 16 Plaintiff and Ramirez exchanged words and Ramirez told Plaintiff to shut up. 17 Plaintiff complied. Ramirez shoved Plaintiff toward the building door but Plaintiff was able 18 to avoid hitting the door. Plaintiff stumbled but caught his footing. Ramirez shoved 19 Plaintiff again at the entrance to Plaintiff’s housing section and Plaintiff was again able to 20 avoid hitting the door. However, Plaintiff experienced pain in his left wrist and forearm. 21 Plaintiff saw a nurse but was denied treatment. He had an abrasion and still has popping 22 in his wrist. 23 Following this incident, Plaintiff filed grievances. Ramirez told staff about “the 24 situation” so they would mistreat Plaintiff. As a result, Plaintiff had unspecified issues 25 with staff. This led to a pretextual rules violation report, which was issued on September 26 6, 2013 and charged Plaintiff with destruction of property. The report was issued by non- 27 parties Curliss and Morgan. Defendant Riley was assigned as Plaintiff’s Investigative 28 5 1 Employee. Plaintiff rejected assistance from Riley because he believes Riley was 2 conspiring with other staff against him. Riley told Plaintiff to write down his objections but 3 never returned to pick them up. 4 Plaintiff sent his objections to Defendant Allen. He also wrote Defendant Coontz, 5 the Senior Hearing Officer, to inform him Riley had fabricated his report. Although 6 Plaintiff previously waived his presence at the hearing, he stated he would attend if 7 Officers Riley and Curliss could be called as witnesses. Receiving no response, Plaintiff 8 informed Coontz that he would not attend the hearing and would provide a written 9 statement. 10 Riley wrote a falsified report regarding his investigation. Coontz refused to accept 11 Plaintiff’s written statement. Coontz found Plaintiff guilty and wrote false statements in 12 his report of the hearing. The decision was authored by Coontz and was approved by 13 Defendants Allen and Gutierrez. As a result of the guilty finding, Plaintiff lost electronic 14 devices, canteen, and quarterly packages for 90 days, and also lost 90 days of good 15 conduct credits. On September 27, 2013, his television, headphones, and audio/visual 16 cable were confiscated as a disciplinary restriction and stored in storage. 17 Plaintiff appealed the disciplinary hearing and prevailed on due process grounds. 18 He was issued a “reissue/rehear.” The result of any rehearing is not stated. His 19 confiscated items were eventually returned to him. 20 Plaintiff brings claims for excessive force and violation of due process. 21 D. 22 Analysis 1. Excessive Force 23 To state an excessive force claim, a plaintiff must allege facts to show that the 24 use of force involved an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 25 267 F.3d 895, 910 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 26 Whether the force inflicted unnecessary and wanton pain turns on whether the “force 27 was applied in a good-faith effort to maintain or restore discipline, or maliciously and 28 6 1 sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The Court 2 must look at the need for application of force; the relationship between that need and the 3 amount of force applied; the extent of the injury inflicted; the extent of the threat to the 4 safety of staff and inmates as reasonably perceived by prison officials; and any efforts 5 made to temper the severity of the response. See Whitley, 475 U.S. at 321. 6 Not “every malevolent touch by a prison guard gives rise to a federal cause of 7 action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and 8 unusual punishments necessarily excludes from constitutional recognition de minimis 9 uses of physical force, provided that the use of force is not of a sort repugnant to the 10 conscience of mankind.” Id., at 9-10 (internal quotation marks omitted); see also Oliver 11 v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force 12 standard examines de minimis uses of force, not de minimis injuries). 13 Plaintiff alleges that while he was handcuffed behind his back, Defendant 14 Ramirez, on two separate occasions, used his body weight to attempt to push Plaintiff 15 into a door. Prior to this use of force, Defendant Ramirez stated he wanted to start an 16 altercation with an inmate and told Plaintiff he was upset with him. During the escort, 17 Plaintiff was compliant with all of Defendant Ramirez’s orders. As a result of trying to 18 swerve out of the way, Plaintiff’s arm and wrist were permanently injured, and he sought 19 out medical treatment, but no diagnosis was given. Accepting these allegations as true, 20 as the Court must at the pleading stage, Plaintiff has sufficiently alleged the unnecessary 21 and wanton infliction of pain and the malicious or sadistic use of force to cause harm. 22 Plaintiff has stated a cognizable Eighth Amendment excessive force claim against 23 Defendant Ramirez. 24 2. Due Process 25 The Court previously concluded that Plaintiff’s due process claim was barred 26 under Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) and may only be brought in a 27 habeas corpus proceeding. However, the law in this area has changed since the Court’s 28 7 1 prior screening order. With respect to disciplinary proceedings, the Ninth Circuit has 2 concluded that the mere fact that a disciplinary decision may be considered as a factor in 3 denying parole is insufficient to confer habeas jurisdiction on the court. Nettles v. 4 Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016). Thus, a prisoner serving an 5 indeterminate sentence, who will not directly benefit from the restoration of good time 6 credits, may be foreclosed from seeking habeas relief in relation to disciplinary 7 proceedings. See id. at 928-29. Here, the Court has no information regarding Plaintiff’s 8 sentence. It is therefore unclear from the face of the complaint that the due process 9 claim is Heck barred. 10 Nonetheless, the due process claim is not cognizable as pled. Even assuming 11 Plaintiff suffered a violation of the procedural protections specified in Wolff v. McDonnell, 12 418 U.S. 539, 563-71(1974), he fails to state a due process claim because his guilty 13 finding later was overturned. Plaintiff suffered no loss of credits as a result of the 14 Defendants’ conduct and his confiscated items were returned to him. Nor does Plaintiff 15 specify and other loss attributable to the procedural defects in his RVR hearing. In these 16 circumstances, Plaintiff has not suffered any actual injury as a result of the violation. 17 E.g., Brown v. Marshall, No. CIV S-07-0956 MCE DAD P, 2012 U.S. Dist. LEXIS 27241 18 (E.D. Cal. Feb. 29, 2012) (“[P]laintiff's procedural due process claims related to either his 19 first or second disciplinary proceedings have been rendered moot by the subsequent re- 20 issuing and re-hearing of the rules violation charge against him”); Shotwell v. Brandt, No. 21 C 10-5232 CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (no due process 22 violation where Plaintiff's RVR was ordered reissued and reheard, the plaintiff was found 23 not guilty at the second hearing, and the plaintiff suffered no credit loss or any other 24 punishment); see also Horne v. Coughlin, 155 F.3d 26, 31, n. 3 (2d Cir. 1998) (finding 25 the plaintiff's due process claims with regard to his first hearing were rendered null after 26 the findings and penalties were vacated and a new hearing ordered, and plaintiff 27 suffered no loss of good time credits and no disciplinary record); Morissette v. Peters, 45 28 8 1 F.3d 1119, 1122 (7th Cir. 1995) (court found no injury after a due process violation in the 2 plaintiff's first disciplinary proceedings was subsequently remedied on administrative 3 appeal and plaintiff's sentence was adjusted so that he served no additional time in 4 segregation); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (rejecting the 5 plaintiff's due process claims where he was granted a new hearing and was never 6 penalized for the underlying charges); Harper v. Lee, 938 F.2d 104, 105 (8th Cir. 1991) 7 (rejecting the plaintiff's due process claims after he was granted a new hearing to cure 8 the procedural violations and suffered no harm as a result of the initial violations). 9 E. Conclusion 10 Plaintiff’s complaint states a cognizable excessive force claim against Defendant 11 Ramirez. His due process claim is not cognizable as pled and should be dismissed with 12 prejudice for failure to state a claim. 13 III. Findings and Recommendations on Motion for Summary Judgment 14 As stated, the Ninth Circuit’s remand order leaves the ruling on Defendant’s 15 motion for summary judgment in a state of doubt. The Court will therefore issue findings 16 and recommendations on the motion. Plaintiff has filed an opposition. The motion is fully 17 briefed and ready for disposition. Plaintiff’s Allegations 18 A. 19 As stated, on July 10, 2013, CO Ramirez escorted Plaintiff in handcuffs from the 20 law library to his cell. During escort, CO Ramirez asked Plaintiff, “What the fuck is your 21 problem? You have an attitude with my partner and you’re suing Cacciola.” Plaintiff 22 attempted to defuse the situation by obeying orders, but CO Ramirez twice tried to push 23 Plaintiff into a door, injuring Plaintiff’s arm and wrist. Plaintiff saw a nurse for his injury 24 and still has wrist problems. 25 B. Legal Standards for Summary Judgment 26 Any party may move for summary judgment, and “[t]he [C]ourt shall grant 27 summary judgment if the movant shows that there is no genuine dispute as to any 28 9 1 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be 3 supported by (1) citing to particular parts of materials in the record, including but not 4 limited to depositions, documents, declarations, or discovery; or (2) “showing that the 5 materials cited do not establish the absence or presence of a genuine dispute, or that an 6 adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 7 56(c)(1). 8 The party seeking summary judgment “always bears the initial responsibility of 9 informing the district court of the basis for its motion, and identifying those portions of the 10 pleadings, depositions, answers to interrogatories, and admissions on file, together with 11 the affidavits, if any, which it believes demonstrate the absence of a genuine issue of 12 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation 13 marks omitted). If the movant will have the burden of proof at trial, it must demonstrate, 14 with affirmative evidence, that “no reasonable trier of fact could find other than for the 15 moving party.” Id. at 984. In contrast, if the nonmoving party will have the burden of 16 proof at trial, “the movant can prevail merely by pointing out that there is an absence of 17 evidence to support the nonmoving party’s case.” Id. (citing Celotex, 477 U.S. at 323). 18 Once the moving party has met its burden, the nonmoving party must point to "specific 19 facts showing that there is a genuine issue for trial." Id. (quoting Anderson v. Liberty 20 Lobby, Inc., 477 U.S. 242, 250 (1986)). 21 In ruling on a motion for summary judgment, a court does not make credibility 22 determinations or weigh evidence. See Liberty Lobby, 477 U.S. at 255. Rather, “[t]he 23 evidence of the non-movant is to be believed, and all justifiable inferences are to be 24 drawn in his favor.” Id. Only admissible evidence may be considered in deciding a 25 motion for summary judgment. Fed. R. Civ. P. 56(c)(2). “Conclusory, speculative 26 testimony in affidavits and moving papers is insufficient to raise genuine issues of fact 27 28 10 1 and defeat summary judgment.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 2 (9th Cir. 2007). 3 C. 4 The facts underlying this action occurred while Plaintiff was housed at California 5 Correctional Institution (“CCI”) in Tehachapi, California, where Defendant CO Ramirez 6 was employed as a CCI Correctional Officer. Decl. of J. Ramirez in Supp. of Def.’s Mot. 7 Summ. J. (ECF No. 102-2) ¶ 1. Undisputed Facts 8 On July 10, 2013, CO Ramirez worked as an A-4 Search and Escort Officer. 9 Ramirez Decl. ¶ 2. That morning, he and CO Mullins (not a party to this action) escorted 10 Plaintiff from the law library back to his cell. Id. ¶ 2. 11 Per Defendant, CO Mullins placed Plaintiff in handcuffs prior to the escort, and 12 CO Ramirez then held Plaintiff by the right bicep in order to begin the escort back to 13 Plaintiff’s cell. Ramirez Decl. ¶ 3. During the escort, Plaintiff used profanity and loudly 14 complained that his handcuffs were too tight. Id. ¶ 4. CO Ramirez stopped to inspect 15 Plaintiff’s handcuffs. Id. After determining that there was sufficient space between the 16 handcuffs, the officers continued the escort. Id. During the remainder of the escort, 17 Plaintiff continued to use profanity to provoke CO Ramirez. Id. ¶ 5. When Plaintiff was 18 returned to his cell, the handcuffs were removed. Id. ¶ 6. Following the escort, CO 19 Ramirez drafted a General Chrono to document Plaintiff’s incendiary behavior, which CO 20 Ramirez construed as an attempt to instigate an altercation. Id. ¶ 7, Ex. A. Defendant 21 denies using any force against Plaintiff during this escort. Id. ¶¶ 6, 8. 22 Per Plaintiff, CO Ramirez twice used his body weight to shove Plaintiff into a door. 23 Sec. Am. Compl. ¶¶ 23-24. Each time, Plaintiff was able to avoid hitting the door and 24 avoid falling. Id. As a result of this incident, Plaintiff claims that he experienced a sharp 25 pain radiating from his left wrist into his left forearm. Id. ¶ 25. He also claims to have 26 sustained a four-inch abrasion to the left arm and ongoing wrist pain and a popping 27 sound in his wrist. Id. ¶¶ 29-30. 28 11 1 In support of his claim of injury, Plaintiff submits a Medical Report of Injury or 2 Unusual Occurrence (a CDCR 7219 form) prepared by a CCI Registered Nurse. Pl.’s 3 Opp’n, Ex. A. The report identifies the date of the cause of his injury as July 11, 2013, 4 the day after the incident at issue here. Id. The nurse noted redness on Plaintiff’s left 5 forearm. Id. Notably, the nurse did not identify any abrasion, scratch, active bleeding, 6 dried blood, cut, laceration, slash, or puncture on Plaintiff’s left forearm. See id. There is 7 also no mention of any wrist injury. See id. 8 D. Discussion 9 The Eighth Amendment prohibits cruel and unusual punishment. “[T]he 10 unnecessary and wanton infliction of pain...constitutes cruel and unusual punishment 11 forbidden by the Eighth Amendment.” Whitely v. Albers, 475 U.S. 312, 319 (1986). 12 “The Eighth Amendment's prohibition of cruel and unusual punishments 13 necessarily excludes from constitutional recognition de minimis uses of physical force, 14 provided that the use of force is not of a sort repugnant to the conscience of mankind.” 15 Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 16 (1992)) (internal quotations omitted). 17 Not every malevolent touch by a prison guard gives rise to a federal cause of 18 action. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9) (quotation marks 19 omitted). In determining whether the use of force was wanton and unnecessary, courts 20 may evaluate the extent of the prisoner's injury, the need for application of force, the 21 relationship between that need and the amount of force used, the threat reasonably 22 perceived by the responsible officials, and any efforts made to temper the severity of a 23 forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations omitted). While 24 the absence of a serious injury is relevant to the Eighth Amendment inquiry, it does not 25 end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause harm 26 always violates contemporary standards of decency. Wilkins, 559 U.S. at 37 (quoting 27 Hudson, 503 U.S. at 9) (quotation marks omitted). Thus, it is the use of force rather than 28 12 1 the resulting injury which ultimately counts. Id. at 1178. Mere negligence is not 2 actionable under § 1983 in the prison context. Toguchi v. Chung, 391 F.3d 1051, 1060 3 (9th Cir. 2004). 4 5 Defendant seeks summary judgment on the ground that the alleged use of force was de minimus. 6 Construing the facts in Plaintiff’s favor, the evidence establishes that Defendant 7 shoved Plaintiff twice into a door without provocation, but each time Plaintiff was able to 8 avoid hitting the door or falling. Evidently the force used by Defendant was so minimal 9 that a handcuffed inmate was twice able to avoid hitting anything or losing his footing. 10 On these facts, the Court concludes that no reasonable juror would find that these two 11 shoves were applied with anything more than a relatively small amount of force. See, 12 e.g., Royal v. Knight, 2013 WL 6835188 (E.D. Cal. Dec. 20, 2013) (summary judgment 13 entered for the defendant on excessive force claim based on a single de minimus shove 14 that did not result in injury); Washington v. Duncan, 2011 WL 2020703 (N.D. Cal. May 15 24, 2011) (summary judgment entered for the defendant based on an excessive force 16 claim that he shoved plaintiff against a fence causing plaintiff to bounce backwards). 17 . The nature and extent of Plaintiff’s injuries must be considered in determining 18 whether the evidence supports a reasonable inference that Defendant’s alleged use of 19 force was motivated by sadistic or malicious intent. Hudson, 503 U.S. at 7. While Plaintiff 20 alleges that he suffered injuries as a result of these two shoves, there is no evidence 21 linking those injuries to Defendant’s conduct or even corroborating Plaintiff’s claim of 22 wrist injury or the presence of an abrasion on his left arm. Plaintiff submits only a 23 Medical Report of Injury, which notes the date of injury as the day after the incident at 24 issue here and notes only redness on his left forearm. This report does not corroborate 25 Plaintiff’s claim that he sustained a four-inch abrasion to the left arm or that he suffered 26 wrist pain and is continuing to suffer wrist problems. 27 28 13 1 Based on these factors, the undersigned finds that no reasonable juror could find 2 that Defendant’s two alleged shoves with no evidence of any injury attributable to 3 Defendant was “repugnant to the conscience of mankind.” Wilkins, 559 U.S. at 37-38. 4 These factors support a finding that any force used by Defendant was de minimus. 5 E. Conclusion 6 Based on the foregoing, the Court will recommend that Defendant’s motion for 7 summary judgment be granted. 8 IV. Conclusion and Recommendation 9 In sum, Plaintiff’s second amended complaint states a cognizable Eighth 10 Amendment due process claim against Defendant Ramirez, but no other cognizable 11 claims. Additionally, Defendant Ramirez is entitled to summary judgment on the sole 12 cognizable claim. 13 Accordingly, it is HEREBY RECOMMENDED that: 14 1. All claims alleged in the second amended complaint, other than the 15 excessive force claim against Defendant Ramirez, be dismissed with 16 prejudice and without leave to amend for failure to state a claim; 17 2. Defendant Ramirez’s motion for summary judgment be granted; 18 3. Summary judgment be entered in favor of Defendant Ramirez; and 19 4. The action be closed. 20 These findings and recommendations will be submitted to the United States 21 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 22 § 636(b)(1). Within fourteen (14) days after being served with the findings and 23 recommendations, the parties may file written objections with the Court. The document 24 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 25 A party may respond to another party’s objections by filing a response within fourteen 26 (14) days after being served with a copy of that party’s objections. The parties are 27 advised that failure to file objections within the specified time may result in the waiver of 28 14 1 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 2 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: April 10, 2018 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15