FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter is before the court on defendants' April 25, 2008 motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has not filed any opposition to the motion.*fn1
Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. On September 8, 2004, his wife and children were leaving after an overnight family visit when defendant correctional officers Medina and Walton and correctional officer Jones illegally detained and interrogated them. Plaintiff filed a misconduct complaint against the officers and requested that officials investigate the matter and discipline the officers. (Compl. at 3.)
On November 5, 2004, defendants Medina and Walton conducted an unauthorized search of plaintiff's cell in retaliation for his filing of the misconduct complaint. The officers snatched open the cell door, rushed inside, and shouted profanities and conflicting commands at plaintiff and his cellmate. Plaintiff informed them that they were confusing and frightening him, but the officers told him to lay on the floor with his head near the cell entrance. When plaintiff began yelling for help from other custody staff, defendant Medina grabbed him, tore his undershirt off his body, and slammed his face into the bars of the adjacent cell. (Compl. at 4.)
Plaintiff informed defendant Medina that he was not resisting and raised his hands above his head to allow Medina to place him in mechanical restraints. Defendant Medina then attempted to slam plaintiff's face into the cell bars again. When plaintiff grabbed the cell bars, defendant Medina leaned close to his ear and told him that he was going to teach him about "writing paper" about him and his partners. After a struggle, defendant Medina slammed plaintiff to the floor, dislocating his shoulder, climbed on top of plaintiff and placed his knee on plaintiff's neck, restricting plaintiff's breathing. Plaintiff tried to call for help, but defendant Medina told him that he had just bought himself an assault charge. Defendant Medina then yelled "that's my knee," as if plaintiff had assaulted him, and grabbed plaintiff's ring finger and twisted it until it too dislocated. After plaintiff was placed in mechanical restraints, another officer escorted him to the custody complex. (Compl. at 5-6.)
Defendants Schievelbein and Manuel were present in the housing unit at the time of defendants Medina and Walton too their retaliatory actions against plaintiff and deliberately failed to prevent the conduct. During an encounter with defendant Boone about an hour after being placed in a holding cage plaintiff was informed that Boone also knew of the retaliatory plan and was participating in it. (Compl. at 6-7.)
About two hours after plaintiff was placed in the holding cage, defendants Medina and Walton began taunting him. When MTA Latham came to medically clear plaintiff for placement in the administrative segregation unit, plaintiff told him about the injuries to his face, finger, and shoulder and pleaded for medical attention but Latham responded that he did not see anything wrong and told plaintiff that he would see someone in administrative segregation the next day. Defendant Latham then cleared plaintiff for administrative segregation without providing any medical treatment and falsely documented in a medical report that plaintiff had no visible injuries. (Compl. at 7-8.) Latham also falsely reported that when asked what had happened to him, plaintiff responded that he had no idea. (Id.)
On November 8, 2004, Plaintiff appeared before defendant Manuel for an administrative segregation retention hearing. Plaintiff complained about lack of medical treatment and the retaliatory actions of defendants Medina and Walton. Defendant Manuel stated that she would stand by her officers and support their allegations no matter what. Defendant Manuel also said that she would send someone to video record plaintiff's excessive force complaint and promised she would call the staff physician so that plaintiff would receive medical treatment that day. (Compl. at 8-9.)
On November 9, 2004, plaintiff stopped MTA White as he was distributing medications in administrative segregation. MTA White commented on plaintiff's visible facial injuries and swelling, provided plaintiff with pain medication, accurately documented plaintiff's injuries, and said he would bring the matter to the staff physician's attention and request that someone see plaintiff without delay. (Compl. at 9.)
On November 10, 2004, Lieutenants Krlsuh and Norris video recorded plaintiff's excessive force complaint but told him to confine his statements to the actual physical contact with defendant Medina, covering-up defendant Medina and Walton's other unauthorized actions. In response to plaintiff's complaint regarding lack of medical care, defendant Krlsuh promised to see what he could do. However, plaintiff did not receive medical treatment that day. (Compl. at 9-10.)
On November 11, 2004, defendant Schievelbein interviewed plaintiff and told him that appropriate action would be taken against defendants Medina and Walton. He also told plaintiff not to worry about a disciplinary charge and promised him medical care. Plaintiff did not, however, receive medical treatment that day either. (Compl. at 10.)
On November 12, 2004, at a classification committee meeting, Warden Shepherd informed plaintiff that his complaint of excessive force had been referred to the appropriate committee. Defendant Shepherd promised plaintiff that he would receive medical care for his still visible facial injuries and other injuries. Again, plaintiff did not receive medical treatment that day. (Compl. at 11.)
Between November 5, 2004, and November 13, 2004, plaintiff mailed several letters to his family about the assault and his injuries but later learned they did not receive any of the letters. During the same period of time, defendants Medina, Walton, and Boone came to administrative segregation several times, taunted plaintiff for sending written complaints to his family and prison officials, and asked him what he thought he or his people could do. Plaintiff believes defendants Medina, Walton, and Boone intercepted his letters and destroyed them. (Compl. at 11.)
On November 15, 2004, plaintiff's mother called the institution and complained about plaintiff not receiving medical care. Plaintiff was then taken to the clinic for treatment and x-rays the same day. On November 16, 2004, plaintiff returned to the clinic to review the x-rays. During the visit, defendants Walton and Boone entered the clinic and observed the medical consultation, thereby influencing the prison doctor to conduct a cursory examination and downplay the seriousness of plaintiff's injuries. (Compl. at 12-13.)
On November 20, 2004, plaintiff and his cellmate received rule violation reports with plaintiff being charged with battery on a peace officer, and his cellmate being charged with resistive behavior. Plaintiff requested that defendants Medina, Walton, Manuel, and two additional correctional officers be interviewed and called as witnesses at the hearing. (Compl. at 13-14.)
On December 19, 2004, at plaintiff's hearing, defendant Adams refused to call any of plaintiff's requested witnesses, falsely wrote that plaintiff rescinded his request for witnesses, falsely recorded that plaintiff pled guilty to the disciplinary charge, and found plaintiff guilty of the lesser charge of resistive behavior. (Compl. at 13-14.)
On or about December 28, 2004, defendant Adams told plaintiff and his cellmate that the Mexican Mafia and White inmates had put a hit out on them. Defendant Adams fabricated this threat to place plaintiff back in administrative segregation and to prevent him from appealing defendant Adams' disciplinary decision. On December 30, 2004, plaintiff appealed the disciplinary decision and requested a transfer. (Compl. at 14-15.)
On January 4, 2005, defendant Manuel threatened plaintiff with administrative segregation for filing grievances. Similarly, on January 20, 2005, Lieutenant Armstrong threatened plaintiff with a retaliatory transfer for pursuing grievances. (Compl. at 15-16.)
Plaintiff suffered repeated shoulder dislocations after November 5, 2004. Drs. McArthur and Torruella told plaintiff that he needed an MRI and would continue to suffer dislocations if he did not receive surgery. Both doctors requested an MRI and surgery for him, but defendant Peterson, the Chief Medical Officer, denied the requests. (Compl. at 13-18.)
By way of relief, plaintiff seeks a transfer from Folsom State Prison, an MRI, an evaluation by a specialist along with any medical treatment the specialist orders, and compensatory and punitive damages. (Compl. at 21.)
On June 28, 2005, the court determined that plaintiff's complaint appeared to state cognizable claims against eleven defendants. On October 17, 2005, plaintiff submitted the documents required for service of the complaint. By order filed October 21, 2005, the court directed the United States Marshal to serve the defendants. The Marshal was unable to effect service on defendants Latham, Krlsuh, and Adams but executed service on defendants Armstrong, Boone, Manuel, Medina, Peterson, Schievelbein, Shepherd, and Walton. On March 16, 2006, defendants filed a motion to dismiss pursuant to unenumerated Rule 12(b) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. On July 10, 2006, plaintiff filed his opposition to defendants' motion. Defendants did not filed a reply.
On January 17, 2007, the undersigned issued findings and recommendations on defendants' motion to dismiss finding that plaintiff exhausted his claims concerning the events of November 5, 2004, and all related events between November 5, 2004, and November 18, 2004, including defendant Medina's alleged retaliation and use of force; defendant Walton's alleged retaliation and participation in the use of force; defendant Manuel's alleged failure to protect plaintiff and failure to obtain medical treatment for him; defendant Schievelbein's alleged failure to protect plaintiff and failure to obtain medical treatment for him; defendant Boone's alleged participation in the retaliation; defendant Latham's alleged failure to provide or obtain medical care; defendant Krlsuh's alleged delay in video taping plaintiff's statement regarding the use of excessive force, his restrictions on the scope of plaintiff's statement, and his failure to obtain medical treatment for plaintiff; and defendant Shepherd's alleged failure to obtain medical treatment for plaintiff. However, the court also found that plaintiff had failed to exhaust claims that arose after November 18, 2004, including claims concerning the rules violation report he received on November 20, 2004; the disciplinary proceedings that followed; the security threat allegedly fabricated by defendant Adams; the alleged threats by defendant Manuel on January 4, 2005; the alleged threats by defendant Armstrong on January 20, 2005; and defendant Peterson's denial of physicians' requests for an MRI and surgery for plaintiff. Finally, the undersigned found that, plaintiff's claims regarding defendants' alleged threats and harassment should not be dismissed and instead should be read in the context of plaintiff's retaliation claim, that plaintiff had sufficiently alleged defendant Manuel and Schievelbein's involvement in the deprivation of his constitutional rights, and that plaintiff had stated a cognizable claim for deliberate indifference to his serious medical needs against defendants Boone, Manuel, Medina, Krlsuh, Schievelbein, Shepherd, and Walton. Thus, the undersigned concluded that defendants' motion to dismiss pursuant to unenumerated Rule 12(b) should be granted as to all of plaintiff's claims against defendants Adams, Armstrong, and Peterson, and all claims that arose after November 18, 2004, and that defendants' motion to dismiss pursuant to Rule 12(b)(6) should be denied.
On March 8, 2008, the assigned district judge adopted those findings and recommendations in full. On March 12, 2007, defendants Boone, Manuel, Medina, Schievelbein, Shepherd, and Walton filed an answer. On March 22, 2007, the court issued a discovery order. On April 25, 2008, defendants filed a motion for summary judgment. As noted above, plaintiff has not filed an opposition to that motion.
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
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) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine ...