ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se, brought this action under 42 U.S.C. § 1983 for alleged civil rights violations. The case is before the court on defendants' motion for summary judgment. Plaintiff has not filed an opposition to the motion. Instead, on April 11, 2008, he filed a request pursuant to Fed. R. Civ. P. 56(f) to continue the motion. For the reasons explained below, plaintiff's Rule 56(f) request is denied and it is recommended that the motion for summary judgment be granted.*fn1
This action proceeds on the September 20, 2006, verified amended complaint. The claims remaining in this action are the following: (1) on July 8, 2004, Kramer allegedly jumped across a table and attacked plaintiff; (2) defendants Kramer and St. Andre allegedly kicked plaintiff's legs from underneath him; (3) Kramer, St. Andre, Davey and Dittman allegedly dragged plaintiff across the room to a holding cage; (4) Davey allegedly ignored a health condition justifying plaintiff being restrained in a waist-chain instead of handcuffs and handcuffed plaintiff behind his back in violation of the Eighth Amendment; (5) thereafter, defendant Kalbach allegedly rolled plaintiff onto his stomach, shackled his ankles and sat on plaintiff's legs while pulling his feet backwards into an "arm lock;" (6) defendant Davey allegedly sat on plaintiff's back and rocked back and forth so as to deprive plaintiff of oxygen, ignored plaintiff's cries for help, laughed, threatened plaintiff with death while laughing and joking with subordinates; (7) defendant Johnson allegedly entered the room and ordered Kramer to take Davey's position; (8) Kramer, St. Andre, Erlich, Fleming and Dittman allegedly took turns rocking back and forth on plaintiff's back; (9) defendants Kalbach, Williams, and Bortle allegedly each took a turn sitting on plaintiff's legs while pulling back plaintiff's legs; (10) plaintiff allegedly told defendant Dr. James about chronic back and shoulder pain resulting from the attack, but Dr. James refused to evaluate or acknowledge plaintiff's condition in violation of the Eighth Amendment; and, (11) on February 14, 2005, defendants Sears and Wright allegedly entered plaintiff's cell, censored and confiscated plaintiff's papers related to a pending lawsuit, and stole items of plaintiff's property and destroyed others in retaliation for plaintiff's having filed grievances against other officers.
I. Request for Judicial Notice
Defendants ask that judicial notice be taken of records from cases plaintiff has filed in the federal courts. Plaintiff does not oppose the request and it appears the judicial notice is appropriate here.
A federal court may take judicial notice of adjudicative facts. Fed. R. Ev. 201(a)-(c). Judicial notice may be taken of the records of this or other courts for the facts that those records represent. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (court may take judicial notice of dismissal and ground therefore, but not of disputed facts therein). The records defendants want judicially noticed are from three cases that plaintiff was pursuing in this and one other federal court at the time defendants Sears and Wright searched his cell. The records show what had been filed and when and the orders issued by the court in each of the three cases. They are relevant to the defense of plaintiff's claim that defendants Sears and Wright violated plaintiff's right of access to the courts by confiscating materials relevant to those actions. The records consist of and constitute adjudicative facts relevant to defendants' motion for summary judgment. Thus, the request must be granted.
At all times relevant to this action, plaintiff was a prisoner at High Desert State Prison ("HDSP")*fn2 . Am. Compl., § 5. Plaintiff receives care through the Mental Health Delivery System ("MHDS"). Defs.' Mot. for Summ. J., Attach. 2, Defs.' Stmt. of Undisp. Facts ("SUF") 25. Defendants Kramer, Davey, St. Andre, Dittman, Kalbach, Erlich, Fleming, Givich and Bortle were guards at HDSP. Am. Compl. IV, V. Defendants Cox and James were physicians there. See Am. Compl., at ¶¶ 32--34; SUF 47.
On July 3, 2004, plaintiff was housed in C Facility in a building where Guillen*fn3 was assigned. Defs.' SUF 4. Plaintiff was not on good terms with Guillen, and wanted to be moved away from where he worked. SUF 4, 5. Thus, on July 8, 2004, plaintiff refused to return his breakfast tray to protest the location of his housing and to obtain an opportunity to request that he be housed farther away from Guillen. SUF 5. Plaintiff knew that withholding his food tray would gain the attention of the guards on duty. SUF 6. The tactic worked, and plaintiff was informed that he could discuss the matter with defendant St. Andre in the C Facility program office. SUF 7. Plaintiff then returned the tray. Id. He was placed in a waist-chain, as opposed to handcuffs, and escorted to the program office, where he met with St. Andre at about 7:50 a.m. SUF 7, 8; Defs.' Mot. for Summ. J., Attach. C, "Evidence in Support of Motion for Summary Judgment" ("Defs.' Ev."), Ex. 8.
The parties agree that in the program office, plaintiff expressed his desire to be moved, and defendant St. Andre ordered plaintiff to return to his assigned cell. SUF 8, 9. However, here their versions of events diverge. Defendants have submitted evidence that plaintiff refused. SUF 10. St. Andre ordered guards to place plaintiff into a holding cell. SUF 12. Plaintiff refused to move, and wrapped his legs around the legs of the chair in which he was sitting. SUF 10, 13. Thus, at around 8:05 a.m., defendants Erlich, Dittman, Kramer and Bortle used force to move him. Erlich took plaintiff by the left upper arm, and Dittman took plaintiff by the right. SUF 11. Bortle disengaged plaintiff's right leg from the chair and Kramer removed the chair from beneath plaintiff. Id. The guards thus carried plaintiff from where he had been seated in the program office to a holding cell. SUF 13.
In the verified amended complaint, plaintiff offers a strikingly different account. He alleges that while he and St. Andre were talking, Kramer "launched across the office table into plaintiff's chest, which cause him to fall backward." Am. Compl., at 3. At deposition, plaintiff testified that he landed directly on his back and the back of his head hit the floor. Defs.' Ev., Ex.
9. He felt "temporarily paralyzed," meaning he "couldn't hardly move" his lower body. Id. Plaintiff was not sure whether he had any marks or bruises from falling backwards because no one ever fully examined him. Id. Thereafter, St. Andre, Bortle, Dittman, Ehrlich and Kramer rolled plaintiff onto his stomach and dragged him across the floor to a holding cage. Am. Compl., at 3.
Here, the parties' versions of events re-converge. At around 8:30 a.m., Davey told plaintiff that he had no choice but to return to his assigned cell. SUF 16. Plaintiff continued to refuse, and Davey ordered plaintiff handcuffed because of his continued resistence. Id. Plaintiff stated that he had permission not to be handcuffed behind his back because of a medical condition. Id. With his initial complaint, plaintiff submitted documents showing that he had written permission to be restrained with waist-chains. Init. Compl., Attach. B, at 3, 6. While Davey asserts in his declaration that he permitted guards to use "double-handcuffs" so as to minimize the tension on plaintiff's arms, SUF 16, plaintiff alleges that Davey handcuffed him behind his back with ordinary cuffs. Am. Compl., at 3. Once the handcuffs were applied, Dittman and Kalbach attempted to take plaintiff to his cell. SUF 17. But plaintiff refused to walk. Id. Dittman and Kalbach therefore placed plaintiff into a wheelchair. SUF 18. In his declaration, Davey asserts that he tried to push the wheelchair, but plaintiff resisted by putting his feet on the ground to prevent the wheelchair from moving. Id. Davey thus turned the wheelchair around so that he could pull it without plaintiff having any ability to impede its movement. SUF 19. As Davey pulled the wheelchair backwards, plaintiff lunged from the wheelchair. SUF 20. In order to prevent him from falling, Davey grabbed plaintiff by the collar of his shirt. Id. In response, plaintiff stiffened his body, and tried to slip out of the wheelchair feet first. SUF 21. Defendants Dittman and Kalbach assisted plaintiff to the floor, but plaintiff kicked his feet and thrashed his body. SUF 22. In order to control plaintiff, Dittman rolled plaintiff onto his stomach and got on top of him. SUF 23. Kalbach held onto plaintiff's legs and applied mechanical restraints to prevent plaintiff from kicking. Id. Plaintiff concedes that he could not see who was on top of him. SUF 24. Plaintiff was not conscious of how long he was on the floor, but estimates that it was no longer than 45 minutes. Id. A licenced clinical social worker interviewed plaintiff while he was on the program office floor. SUF 25. The social worker believed that plaintiff was aware of his choices and the consequences thereof. Id.
With the initial compliant, plaintiff submitted a copy of the incident report that defendant Kalbach completed the day of the incident giving rise to this action. In it, Kalbach states that he and Dittman placed plaintiff into the wheelchair and that they (as opposed to Davey) were the ones pushing it. Init. Compl., Attach. A, at 70. Kalbach's account, however, agrees that plaintiff attempted to impede its progress by planting his feet on the ground in front of him. Id. Kalbach reported that he turned the wheelchair around and as he attempted to pull it, plaintiff pushed himself out of the chair and onto the floor, and began kicking his feet. Id. Defendants Erlich and Dittman rolled plaintiff onto his stomach and Kalbach applied mechanical restraints to plaintiff's feet. Id. Immediately thereafter, Erlich directed Kalbach to put on protective gear to prepare for a "tactical use of force." Id.
At deposition, plaintiff explained that he could not see exactly who was on him at any given point because his face was pressed into the floor. Defs.' Ev., Ex. 9. However, he was fairly certain that Davey was first to be on top of him. Id. The guards took turns for intervals of around five to ten minutes. Id. Plaintiff testified that various defendants had been on top of him for about 30 minutes when Johnson ordered Givich to obtain a video camera. Id. While Givich video recorded the events the guards held plaintiff down without, they assert, putting full weight on him but still adequate to prevent him from moving. Id. Givich also taped the other guards placing plaintiff in the wheelchair. Id. Plaintiff explained that at this point, he could not walk because he experienced numbness in some places and tremendous pain in others. Id. These symptoms generally were in his left shoulder and in his back. Id. Plaintiff further testified that he could not stand. Id.
Defendants assert that defendants Davey and Johnson determined it was necessary to apply a "calculated use of force" in order to return plaintiff to his cell. SUF 26; see also, Defs.' Ev., Davey Decl., ¶12. Williams, Dittman, Kalbach, St. Andre and Erlich donned Personal Protective Equipment ("PPE") suits to prepare to move plaintiff. SUF 28. At around 8:45 a.m., Givich began to record on videotape the measures taken to restrain plaintiff and to return him to his cell. SUF 27, 28.
At around 9:10 a.m., a medical technical assistant ("MTA") examined plaintiff for complaints of back and left leg pain, but found no injuries. SUF 29. The MTA asked whether plaintiff would agree to be escorted to the medical clinic, and plaintiff agreed that he would.
Init. Compl., Attach. A, at 70. Thus, Dittman and Williams assisted plaintiff into the wheelchair and took plaintiff to the medical clinic. Id.; SUF 30. At the clinic, Dr. Cox ordered guards to remove the handcuffs so that he could examine plaintiff. Init. Compl., Attach. A, at 70. On examination, Dr. Cox concluded that plaintiff had no tenderness in his left shoulder, and minimal tenderness in his back. SUF 31. Dr. Cox cleared plaintiff for return to his cell. Id.; Init. Compl., Attach. A, at 70. Dittman and Williams took plaintiff to his cell by wheelchair, where they assisted plaintiff into his lower bunk. SUF 31; Init. Compl., Attach. A, at 71.
Chatman had lower back, left shoulder and left leg injuries before July 8, 2004, when this incident occurred. SUF 33. The back and leg injuries resulted from bullet fragments lodged near his spine. Id. Several years before the July 8, 2004, incident, plaintiff broke his left shoulder. Id. Plaintiff had complained of these injuries to prison medical staff before the incident giving rise to this action. SUF 34. After the incidents giving rise to this action, he did not see any new marks on his left shoulder, but he felt more pain than usual. Defs.' Ev., Ex. 9. His records show that on June 25, 3003, he was examined for tenderness in his lower spine and numbness in his right thigh. SUF 34. On June 14, 2004, he went to the clinic with severe back pain, muscle spasms in his left leg and left shoulder, stiffness and soreness. Id. At deposition, plaintiff conceded that he had no visible signs that defendant [who] injured his left shoulder on July 8, 2004. SUF 35. A physician examined plaintiff on August 17, 2004, and noted that plaintiff walked without a limp, could move freely in a chair, and get in and out of a chair without any apparent difficulty. SUF 36.
Only defendants Davey and St. Andre have submitted declarations in support of the motion. Davey asserts that none of the defendants struck plaintiff. Defs.' Ev., Davey Decl., ¶ 17. He states that he and other defendants simply held plaintiff down. Davey does not specifically deny plaintiff's allegation that he dragged plaintiff across the room, sat on plaintiff's back and rocked back and forth and ignored plaintiff's cries for help. Davey asserts that he used the minimum amount of force he believed necessary to control plaintiff, and he believes that the other defendants did the same. Davey Decl., ¶ 16. St. Andre likewise asserts that neither he nor any other guard hit plaintiff. Defs.' Ev., St. Andre Decl., ¶ 12. St. Andre states that he did not use any force on plaintiff. St. Andre Decl., ¶ 11. He states that believes the force the other defendants used was appropriate, but he does not specifically address or deny the allegation that he watched them use the force plaintiff describes in the verified amended complaint. Defendants Erlich, Fleming and Dittman did not submit declarations and necessarily have not addressed or specifically denied that they sat on plaintiff's back rocking back and forth for about ten minutes each. Similarly, defendants Kalbach, Williams, Givich and Bortle submitted no declarations denying the allegations as to them. Defendant Johnson did not submit a declaration, and thus does not deny ordering Kramer onto plaintiff's back to continue Davey's alleged abuse.
On February 14, 2005, plaintiff was housed in Facility B. SUF 40. On that date, defendants Sears and Wright searched plaintiff's cell during facility-wide search. Id. Prison officials order such searches periodically as a security measure. Id. The property receipts made that day documenting the items taken from plaintiff's cell show that Sears and Wright took only trash and laundry. Id. These two defendants acknowledge that they broke plaintiff's soap in half to ensure that nothing was lodged in the soap. Id. The day defendants searched his cell, plaintiff had three cases pending in federal court. Id. Two of these cases were pending in the Eastern District of California, i.e., Chatman v. Tyner, Case No. 03-6636 AWI SMS (PC), and Chatman v. Felker, Case No. 03-2415 JAM KJM P. SUF 41. At deposition, plaintiff testified that one defendant, Dr. Rohlfing, was dismissed from Chatman v. Felker because plaintiff was not able to file an objection to the magistrate judge's findings and recommendations. Def's. Ev., Ex. 9. One was pending in the Northern District of California, i.e, Chatman v. Early, Case No. 03-2820 MMC. SUF 41. No defendants have been dismissed from Chatman v. Early because of the alleged loss of documents during the cell search. SUF 44. Additionally, plaintiff admits that he has not missed any filing dates in that action. Id. Plaintiff maintained copies of documents related to Chatman v. Felker in a location outside the prison. SUF 45. He concedes that he has been able to gain access to documents taken during the search, and he has not missed any filing dates in that case. Id. Neither has plaintiff missed any filing dates in Chatman v. Tyner. SUF 46.
As noted above, plaintiff had injuries that caused chronic back and shoulder pain. On March 1, 2005, he requested medical attention for severe back and shoulder pain. SUF 28. On March 6, 2005, he requested an independent medical evaluation, a knee brace, a back brace, an egg-crate mattress, and medication. SUF 49. On March 22, 2005, Dr. James interviewed plaintiff and examined his back and left shoulder. SUF 50. However, plaintiff was restrained in a waist-chain at the time, which prevented full examination of plaintiff's shoulder. Id. Based on the examination that he was able to conduct, Dr. James diagnosed plaintiff with tendonitis and bursitis in the left shoulder and with chronic lower back pain. Id. He thus prescribed Tylenol and recommended exercises to alleviate the pain. Id. Dr. James examined plaintiff on August 17, 2004, for plaintiff's complaint of left shoulder pain that was made worse during the July 8, 2004, incident. Dr. James examined plaintiff's legs and ankles and lower back area. Defs.' Ev., Ex. 5. He found that plaintiff was able to twist and move in the chair without difficulty, and was able to walk without a limp. Id.
The court may deny or continue a motion for summary judgment to permit discovery when an opposing party shows by affidavit that without the proposed discovery it cannot present facts essential to justify the party's opposition. Fed. R. Civ. P. 56(f). Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed. R. Civ. P. 56(f). This standard requires the party seeking a continuance to "identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Plaintiff's request appears directed at his allegations of excessive force; i.e., that defendants Bortle, Davey, Dittman, Erlich, Fleming, Givich, Kalbach, Kramer, St. Andre and Williams used excessive force against him and that defendant Johnson failed to protect him against this use of force. Plaintiff asserts that a continuance is necessary while he obtains the following: (1) a July 8, 2004, log that would identify the prisoners who plaintiff alleges were initially present in the room where plaintiff was attacked, but forced to leave before the attack occurred; (2) a Fair Labor Standards Act ("FLSA") sign in/out sheet showing the name of an officer plaintiff believes was forced to leave the office before defendants attacked him; (3) documents showing where in the prison defendant Fleming was on duty July 8, 2004; (4) prison investigative reports concerning plaintiff's allegations that defendants attacked him; (5) an un-redacted copy of defendant Johnson's incident report about the attack; (6) plaintiff's administrative appeals filed concerning defendants' conduct; (7) copies of operational procedures applicable to the investigation of staff misconduct; (8) plaintiff's correspondence with prison officials concerning plaintiff's claims in this action; (9) an opportunity to review the video tape taken following defendants' attack on plaintiff; (10) the state court docket number of a case about defendant Davey's alleged involvement in covering up an investigation of misconduct at High Desert State Prison; (11) documents evidencing defendant Davey's suspension for covering up this investigation; (12) records about prisoners' complaints and lawsuits filed against the defendants; (13) a copy of plaintiff's complaint in this action and the attachments thereto.
While plaintiff has presented an extended laundry list of documents he would request in further discovery, he fails to satisfy his burden to demonstrate that any may reveal information material to his defeating summary judgment. With respect to the investigative reports, incident reports, administrative appeals, correspondence with prison officials, a state court docket number in an unrelated action against defendant Davey, documents evidencing defendant Davey's alleged suspension, the video and records about others prisoners complaints and lawsuits filed against the defendants, he does not allege what specific facts these items will reveal and how they would defeat summary judgment. Neither, of course, has he explained why these facts are essential to oppose defendants' motion for summary judgment. He asserts that the holding cell log will identify the prisoners who defendants instructed to leave the program office before they allegedly attacked plaintiff. Because, as plaintiff alleges, the prisoners were made to leave the room before the incident in question, they did not witness whatever happened. Plaintiff does not explain why the fact of their having been present and being made to leave is essential to opposing the motion for summary judgment. Neither does he allege what facts these prisoners might reveal that is relevant to this action or why these facts are essential to his opposition to the pending motion.
For like reasons, plaintiff has not satisfied his burden with respect to the documents that would reveal the identity of an officer who also was made to leave the program office. Plaintiff also seeks documents that would reveal where in the prison defendant Fleming was working the day he was attacked. However, he does not explain why the location of this defendant that day is essential to opposing defendants' motion.
As to plaintiff's assertion that he requires a copy of his complaint and the attachments thereto, the court has explained in a previous order how he may obtain a copy of his complaint. Plaintiff cannot delay resolution of summary judgment by continuing to assert that he lacks a copy of what he previously said in his ...