(PC) Gipbsin v. Kernan et al, No. 2:2007cv00157 - Document 188 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/10/11 recommending that defendants' 0812/10 motion for summary judgment be granted as to plaintiff's first amendment retaliation claim and denied as to plaintiff's Eighth Amendment excessive force claim. MOTION for SUMMARY JUDGMENT 180 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
Download PDF
(PC) Gipbsin v. Kernan et al Doc. 188 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLARENCE A. GIPBSIN, 11 12 13 Plaintiff, vs. SCOTT KERNAN, et al., 14 Defendants. FINDINGS AND RECOMMENDATIONS / 15 16 No. CIV S-07-0157 MCE EFB P Plaintiff is a state prisoner proceeding without counsel on his February 25, 2008 amended 17 complaint which assert claims brought under 42 U.S.C. § 1983. On September 30, 2009, the 18 court issued an order directing that this action proceed on plaintiff’s Eighth Amendment 19 excessive force and First Amendment retaliation claims against defendants Deforest, Shelton, 20 Prater, Goni and Stone (“defendants”). Dckt. Nos. 138, 143. 21 Defendants move for summary judgment contending that plaintiff cannot show that 22 defendants violated plaintiff’s First Amendment rights, and that plaintiff’s Eighth Amendment 23 claim is barred because it necessarily implies the invalidity of his prison disciplinary action and 24 state court conviction. Dckt. No. 180. Defendants also contend they are entitled to qualified 25 immunity. For the reasons explained below, defendants’ motion must be granted in part and 26 denied in part. 1 Dockets.Justia.com 1 2 I. Summary Judgment Standards Summary judgment is appropriate when it is demonstrated that there exists “no genuine 3 issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” 4 Fed. R. Civ. P. 56(c). 5 6 7 8 Under summary judgment practice, the moving party 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). 9 Summary judgment avoids unnecessary trials in cases with no genuinely disputed 10 material facts. See Northwest Motorcycle Ass’n v. United States Dep’t of Agric., 18 F.3d 1468, 11 1471 (9th Cir. 1994). At issue is “whether the evidence presents a sufficient disagreement to 12 require submission to a jury or whether it is so one-sided that one party must prevail as a matter 13 of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to 14 screen the latter cases from those which actually require resolution of genuine disputes over 15 material facts; e.g., issues that can only be determined through presentation of testimony at trial 16 such as the credibility of conflicting testimony over facts that make a difference in the outcome. 17 Celotex, 477 U.S. at 323. 18 Focus on where the burden of proof lies on the issue in question is crucial to summary 19 judgment procedures. “[W]here the nonmoving party will bear the burden of proof at trial on a 20 dispositive issue, a summary judgment motion may properly be made in reliance solely on the 21 ‘pleadings, depositions, answers to interrogatories, and admissions on file.’” Id. Indeed, 22 summary judgment should be entered, after adequate time for discovery and upon motion, 23 against a party who fails to make a showing sufficient to establish the existence of an element 24 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 25 id. at 322. In such a circumstance, summary judgment should be granted, “so long as whatever 26 is before the district court demonstrates that the standard for entry of summary judgment, as set 2 1 2 forth in Rule 56(c), is satisfied.” Id. at 323. If the moving party meets its initial responsibility, the opposing party must establish that 3 a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. 4 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To overcome summary judgment, the opposing 5 party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the 6 claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 7 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and 8 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 9 party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In this 10 regard, “a complete failure of proof concerning an essential element of the nonmoving party’s 11 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. In attempting to 12 establish the existence of a factual dispute that is genuine, the opposing party may not rely upon 13 the allegations or denials of its pleadings but is required to tender evidence of specific facts in 14 the form of affidavits, and/or admissible discovery material, in support of its contention that the 15 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. It is sufficient that 16 “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 17 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 18 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the 19 proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 20 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). However, the 21 opposing party must demonstrate with adequate evidence a genuine issue for trial. 22 Valandingham v. Bojorquez, 866 F.2d 1135, 1142 (9th Cir. 1989). The opposing party must do 23 so with evidence upon which a fair-minded jury “could return a verdict for [him] on the evidence 24 presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 252. If the evidence presented 25 could not support a judgment in the opposing party’s favor, there is no genuine issue. Id.; 26 Celotex Corp. v. Catrett, 477 U.S. at 323. 3 In resolving a summary judgment motion, the court examines the pleadings, depositions, 1 2 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 3 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 4 255. All reasonable inferences that may be drawn from the facts placed before the court must be 5 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 6 are not drawn out of the air, and it is the opposing party’s obligation to produce a factual 7 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 8 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 9 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 10 some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could 11 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 12 trial.’” Matsushita, 475 U.S. at 587 (citation omitted). On October 16, 2008, the court advised plaintiff of the requirements for opposing a 13 14 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 15 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. 16 Eikenberry, 849 F.2d 409 (9th Cir. 1988). 17 II. Undisputed Facts1 18 On August 12, 2005, plaintiff refused his dinner and asked to speak to either the Cook or 19 the Sergeant. Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”), Stmt. of Undisp. Facts in Supp. Thereof 20 (“SUF”) 8; Defs.’ MSJ, Decl. of J. Devencenzi in Supp. Thereof (“Devencenzi Decl.”), Am. Ex. 21 A (“Pl.’s Dep.”) at 14:11-16. Plaintiff was then escorted to an office by defendants Deforest and 22 Shelton. Pl.’s Dep. at 14:17-15:8. Deforest and Shelton called defendant Goni, Correctional 23 Cook, and asked him to report to the office as well. SUF 4, 11. 24 25 26 1 Defendants stipulate to their “undisputed facts” for purposes of their motion only and do not stipulate to such facts in the event this matter proceeds to trial. See Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”), Mem. of P. & A. in Supp. Thereof (“Defs.’ P. & A.”) at 1, n.1. 4 1 Plaintiff testified in his deposition that while he was alone with Deforest and Shelton, 2 Deforest ordered plaintiff to stand and plaintiff stood up. SUF 12. Subsequently, Goni arrived 3 at the office. SUF 14. Plaintiff testified further that Shelton blocked the door, ordered plaintiff 4 to sit down, and then swung and hit plaintiff in the mouth. SUF 15, 16, 17. Plaintiff claims that 5 his arms flew back and that he grabbed Shelton. SUF 17; Am. Compl. at 6.2 According to 6 plaintiff, Deforest then struck plaintiff in the side of the face and Shelton threw plaintiff over the 7 desk and continued to strike him. SUF 18, 19. In his verified complaint, plaintiff alleged that 8 after landing on the floor, Deforest continued to punch plaintiff in the face and head, while 9 Shelton punched plaintiff’s body. Am. Compl. at 6-7. Plaintiff also alleged that while on the 10 office floor, defendants Prater, Goni and Stone “beat plaintiff in the face, the back of the head, 11 neck, ribs, stomach, side of the body, and slugged [plaintiff] in the legs and ankles with the night 12 stick . . . .” Id. at 7. At his deposition, plaintiff testified that Prater had hit plaintiff’s legs with a 13 baton and that Stone had grabbed his feet. SUF 20, 21; Pl.’s Dep. at 39:3-20. Plaintiff was 14 placed in handcuffs while he was on the floor. SUF 20. 15 Plaintiff was issued a Rules Violation Report (RVR) for battery on a peace officer for the 16 August 12, 2005 incident and lost 150 days of credit. SUF 22, 24. Plaintiff’s guilty finding was 17 based on: (1) Deforest’s statement “I did not order or tell Gibson to get up. Goni was speaking 18 when the inmate got up. At no time prior to the assault, did I tell Gibson to be handcuffed”; (2) 19 Shelton’s statement “Inmate Gibson refused my order, swinging his right arm in a counter 20 clockwise motion striking me on the left side of my chest”; and (3) Deforest’s statement “I then 21 observed inmate Gibson’s right hand swing towards Sergeant Shelton. From where I was 22 standing Inmate Gibson exposed his med-section while punching Sergeant Shelton.” SUF 25, 23 26, 27. 24 2 25 26 The court will treat plaintiff’s verified complaint as an affidavit for purposes of summary judgment pursuant to Federal Rule of Civil Procedure 56(c)(4), to the extent it sets forth matters based on plaintiff’s personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 5 1 Plaintiff also pled no contest to the battery charge in state superior court and was 2 sentenced to two additional years in prison.3 SUF 29; Defs.’ Req. for Jud. Ntc. (plea form and 3 abstract of judgment). 4 III. Discussion 5 A. 6 Plaintiff claims that on August 12, 2005, defendants applied excessive force in retaliation 7 for plaintiff filing a civil lawsuit regarding his religious diet. SUF 7; Pl.’s Dep. at 59:6-11, 60:1- 8 61:6. There are five elements to a First Amendment retaliation claim: (1) a state actor took some 9 adverse action against a prisoner (2) because (3) the prisoner engaged in protected conduct; (4) 10 resulting in the chilling of plaintiff’s First Amendment rights or other more-than-minimal harm; 11 and (5) the action did not reasonably advance a legitimate penological goal. Rhodes v. Robinson, 12 408 F.3d 559, 567-68 (9th Cir. 2005); see also Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 13 2009). 14 First Amendment Retaliation Claim Defendants move for summary judgment on this claim on the ground that plaintiff does 15 not have sufficient evidence to support his claim that defendants’ actions were retaliatory in 16 nature. Defs.’ P. & A. at 6. Specifically, defendants contend that they were required to use force 17 on plaintiff in response to plaintiff committing a battery on defendant Shelton, and that gaining 18 control of an inmate that is attacking a peace officer is a legitimate penological interest. Id. at 6- 19 7. They argue that the evidence does not support the claim that the force applied was motivated 20 by retaliation rather than the need to stop the assault. In his opposition brief, plaintiff repeats his 21 claim that defendants retaliated against him. Pl.’s Opp’n to Defs.’ MSJ (Dckt. No. 183), Mem. 22 of P. & A. in Supp. Thereof, at 6. However, plaintiff’s opposition is not signed under penalty of 23 24 25 26 3 Defendants request that the court take judicial notice of the superior court records (complaint, plea form, and abstract of judgment) in The People of the State of California v. Gibson (Lassen County Superior Court, CH023224). Defs.’ MSJ, Req. for Jud. Ntc. in Supp. Thereof. Plaintiff does not oppose the request. The court therefore takes judicial notice pursuant to Federal Rule of Evidence 201(d). 6 1 perjury, nor is it supported by personal knowledge that defendants’ use of force was retaliatory. 2 His brief, therefore, cannot be considered admissible evidence. See Jones v. Blanas, 393 F.3d 3 918, 923 (9th Cir. 2004) (court must consider as evidence in pro se plaintiff’s opposition to 4 motion for summary judgment, all of plaintiff’s contentions that are based on personal 5 knowledge, attested as true and correct under penalty of perjury, and otherwise admissible). 6 Moreover, plaintiff fails to identify any evidence, admissible or not, in the exhibits to his 7 opposition, that supports his allegation that defendants acted with retaliatory intent. Plaintiff has 8 offered no evidence regarding whether defendants were even aware of plaintiff’s civil lawsuit. 9 He surely has not presented evidence upon which a reasonable jury could render a verdict in his 10 favor on the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 252; Celotex Corp. v. 11 Catrett, 477 U.S. at 323. Accordingly, the court finds that plaintiff has failed to establish a 12 genuine dispute of material fact with respect to his retaliation claim and defendants’ motion for 13 summary judgment must be granted with respect to plaintiff’s retaliation claim. 14 B. 15 Defendants argue that plaintiff’s excessive force claim is barred by Heck v. Humphrey, Eighth Amendment Excessive Force Claim 16 512 U.S. 477 (1994), “because [it] contradict[s] the prison disciplinary action and his felony 17 battery conviction.” Defs.’ P. & A. at 4. In Heck, the Supreme Court ruled that a § 1983 claim 18 which necessarily calls into question the lawfulness of a plaintiff’s conviction or imprisonment is 19 not cognizable unless the plaintiff can show his conviction or sentence has been invalidated. 512 20 U.S. at 486-87. In Edwards v. Balisok, 520 U.S. 641, 643, 648 (1997), the Court ruled Heck 21 applied to actions “challenging the validity of the procedures used to deprive an inmate of 22 good-time credits. . . .” Stated another way, a § 1983 claim is barred if the “plaintiff could 23 prevail only by negating ‘an element of the offense of which he has been convicted.’” 24 Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (citing Heck, 512 U.S. at 487 25 n.6). However, when the § 1983 claim does not necessarily implicate the underlying 26 disciplinary action (or criminal conviction), it may proceed. See Muhammed v. Close, 540 U.S. 7 1 749, 754-55 (2004). 2 Defendants contend that “[p]laintiff’s version of the events, that he was attacked, 3 impermissibly negates the disciplinary findings that he committed battery on a peace officer” and 4 “is inconsistent with his criminal conviction.” Defs.’ P. & A. at 5-6. Defendants contend further 5 that plaintiff “cannot avoid this bar by claiming that he was simply acting in self-defense, 6 because a finding of self-defense would impermissibly negate the findings of his disciplinary 7 proceeding that he committed battery on an officer and his conviction of battery.” Id. at 6. The 8 court does not agree and will therefore recommend that summary judgment be denied as to 9 plaintiff’s excessive force claim. 10 Plaintiff was charged with and found guilty of battery on a peace officer under former 11 Cal. Code Regs., tit. 15 § 3005(c),4 which provided that “[i]nmates shall not willfully commit . . . 12 a violent injury to any person or persons . . . .” See Devencenzi Decl., Ex. B (Rules Violation 13 Report. Log number FD-08-0027). However, as discussed below, success on plaintiff’s claims 14 would not necessarily negate any of the elements of this offense. See Candler v. Woodford, No. 15 C 04-5453 MMC, 2007 U.S. Dist. LEXIS 83988, at *23 (N.D. Cal. Nov. 1, 2007) (“because 16 defendants have not shown that a finding of their use of excessive force would necessarily 17 negate an element of the battery offense, the Court cannot conclude that plaintiff’s claims are 18 barred under Heck.”). 19 Plaintiff’s guilt for battery on a peace officer, and use of excessive force by responding 20 officers are not mutually exclusive factual predicates. The factual context in which the force was 21 used is disputed. Shelton could have been the initial aggressor, as plaintiff contends. And, if 22 plaintiff’s version were believed, plaintiff could have responded to Shelton’s application of force 23 by willfully committing a violent injury to Shelton, i.e., swinging and striking Shelton. If 24 plaintiff responded with more force than that allowed to advance a successful self-defense 25 26 4 This section has since been renumbered and amended as § 3005(d)(1). 8 1 argument, plaintiff could still be guilty of battery. See Simpson v. Thomas, No. 2:03-cv-0591 2 MCE GGH, 2009 U.S. Dist. LEXIS 39945, at *9-10 (E.D. Cal. May 12, 2009) (success on the 3 plaintiff’s excessive force claim would not necessarily invalidate the plaintiff’s battery 4 conviction where the record did not rule out the possibility that the hearing officer had 5 “determined that Defendant struck first, but Plaintiff responded by using more force than was 6 required to protect himself, thus resulting in a non-privileged attack.”). 7 Here, the record does not rule out the possibility that the disciplinary hearing officer 8 found that Shelton had struck first. The hearing officer based the disciplinary conviction on 9 Deforest’s statement that he had not ordered plaintiff to stand up and that he saw plaintiff swing 10 and punch Shelton, and Shelton’s statement that plaintiff refused Shelton’s order and hit Shelton. 11 SUF 25, 26, 27. According to plaintiff, he was directed to stand up by Deforest, then directed to 12 sit down by Shelton, and then hit in the face by Shelton. SUF 12, 16, 17. As a result of being 13 hit, plaintiff claims his arms flew up and he grabbed Shelton. SUF 17; Am. Compl. at 6. The 14 only direct contradiction between plaintiff’s version of events and the hearing officer’s findings 15 is whether Deforest had ordered plaintiff to stand up. Whether or not this occurred is not 16 essential to the determination that plaintiff was guilty of battery. Thus, while plaintiff’s version 17 of events contradicts the disciplinary hearing officer’s finding that Deforest had not ordered 18 plaintiff to stand, success on plaintiff’s excessive force claim would not exclude the possibility 19 that plaintiff battered Shelton. 20 Since plaintiff “could have been convicted of battery even if he had initially acted in 21 self-defense, and since it is not clear from the record that such was not the case, [p]laintiff’s 22 instant claim is not barred.” Simpson, 2009 U.S. Dist. LEXIS 39945 at *10. See also Gabalis v. 23 Plainer, No. CIV S-09-0253-CMK, 2010 U.S. Dist. LEXIS 124121, at *20 (E.D. Cal. Nov. 23, 24 2010) (“Success on plaintiff’s claims, which arise from defendants’ alleged conduct, would not 25 necessarily imply that the factual bases for the rules violation (i.e., plaintiff’s conduct) no longer 26 exist such that the guilty finding would be invalidated. In other words, it is possible for 9 1 defendants to have used excessive [force] and for plaintiff to have attempted to assault a 2 correctional officer. Thus, success on plaintiff’s civil rights claims would not necessarily imply 3 that the guilty finding and resulting loss of good-time credits is invalid.” (emphasis added)). 4 Additionally, defendants could have responded to plaintiff’s battery with excessive force. 5 Defendants’ subsequent use of excessive force would not negate a finding that plaintiff was 6 guilty of battery. See Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc) 7 (“Smith’s § 1983 action is not barred by Heck because the excessive force may have been 8 employed against him subsequent to the time he engaged in the conduct that constituted the basis 9 for his conviction. In such circumstance, Smith’s § 1983 action neither demonstrates nor 10 necessarily implies the invalidity of his conviction.”); Sanford v. Motts, 258 F.3d 1117, 1120 11 (9th Cir. 2001) (“[I]f [the officer] used excessive force subsequent to the time Sanford interfered 12 with [the officer’s] duty, success in her section 1983 claim will not invalidate her conviction. 13 Heck is no bar.”). Thus, plaintiff’s battery conviction could still stand even with a finding that 14 defendants applied excessive force before and/or after plaintiff struck Shelton. Because 15 defendants have not shown that plaintiff’s excessive force claim necessarily implicates the 16 underlying disciplinary action, it may proceed. 17 Plaintiff was also convicted in state court of battering Shelton pursuant to California 18 Penal Code § 4501.5, see Defs.’ Req. for Jud. Ntc., Ex. A, which states: “Every person confined 19 in a state prison of this state who commits a battery upon the person of any individual who is not 20 himself a person confined therein shall be guilty of a felony . . . .” The record contains no 21 evidence as to the specific factual basis for plaintiff’s no contest plea to battering Shelton. As a 22 result, the court cannot conclude that plaintiff’s excessive force claim necessarily implies the 23 invalidity of the felony battery conviction.5 See Smith, 394 F.3d. at 698-99 (where the record 24 25 5 In support of their argument that plaintiff’s excessive force claim is Heck barred, defendants direct the court to the facts of Cunningham: 26 10 1 did not reflect which of plaintiff’s actions constituted the basis of his plea to resisting arrest, 2 success on plaintiff’s excessive force claim would not necessarily invalidate the resisting arrest 3 conviction). Like the disciplinary action, defendants have not shown that the validity of 4 plaintiff’s felony battery conviction would be implicated were plaintiff to prevail on his 5 excessive force claim. 6 In light of the above, the court finds that defendants have not met their burden of 7 demonstrating the absence of a genuine dispute of material fact as to plaintiff’s excessive force 8 claim, and their motion should be denied as to this claim. 9 10 C. Qualified Immunity Defendants contend they are entitled to qualified immunity “because no clearly 11 established law would have placed a reasonable correctional officer on notice that utilizing 12 minimal force to subdue an inmate attacking an officer was a constitutional violation.” Defs.’ P. 13 & A. at 8. Qualified immunity protects government officials from liability for civil damages if a 14 reasonable person would not have known that the conduct violated a clearly established right. 15 Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). Undoubtedly, taking the facts as alleged 16 by the defendants and assuming only minimal force to subdue an inmate, a reasonable person 17 18 19 20 21 22 23 24 25 26 In Cunningham, two robbers exchanged gunfire with police officers surrounding their getaway car. The exchange resulted in the death of one robber and an attempted murder and a felony-murder conviction for the other. Cunningham v. Gates, 312 F.3d 1148, 1152. Following his conviction, the surviving robber attempted to bring an excessive force claim against the officers. Id. He argued that the police fired first and that the officers’ excessive use of force created a situation that provoked him into firing his weapon. Id. at 1154. The Ninth Circuit held that both theories were barred under Heck because they disputed factual issues that had been resolved in the criminal action against him. Id. The theory that police fired first was “squarely barred” because the plaintiff’s felony murder conviction required the jury to find that he had intentionally provoked the deadly police response, and did not act in self-defense. Id. Thus, any claim that the plaintiff was not the provocateur necessarily fails. Id. Defs.’ P. & A. at 5 (emphasis added). Here, unlike Cunningham, defendants have not shown that plaintiff’s battery conviction required a finding that plaintiff had not initially acted in selfdefense. 11 1 could not conclude that defendants violated a clearly established right. That is not the test, 2 however, for qualified immunity. In determining whether a governmental officer is immune from suit based on the doctrine 3 4 of qualified immunity, the court considers two questions: 1) do the facts alleged show the 5 officer’s conduct violated a constitutional right; and 2) was the right clearly established? 6 Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 129 S.Ct. 808, 818 (2009) 7 (courts have discretion to decide which of the two Saucier prongs to address first). For purposes 8 of evaluating defendants’ assertion of qualified immunity, the court must look at the facts in the 9 light most favorable to plaintiff. Saucier, 533 U.S. at 201. Defendants’ argument, is premised 10 on an assumption that is disputed and cannot be conclusively shown from the record, namely, 11 that defendants used only minimal force in order to subdue plaintiff. Viewing the facts in the 12 light most favorable to plaintiff, they set forth a violation of plaintiff’s Eighth Amendment 13 rights. See Am. Comp. 6-7. Moreover, in August of 2005, plaintiff’s right to be free from the 14 use of excessive force by correctional officers was clearly established. See Hudson v. 15 McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S. 312 (1986). Accordingly, the court 16 finds that defendants are not entitled to summary judgement on the basis of qualified immunity. 17 IV. Recommendation 18 For the reasons stated above, IT IS HEREBY RECOMMENDED that defendants’ 19 August 12, 2010 motion for summary judgment be GRANTED as to plaintiff’s First Amendment 20 retaliation claim and DENIED as to plaintiff’s Eighth Amendment excessive force claim. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 //// 12 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: February 10, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13