FINDINGS & RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se with an action under 42 U.S.C. § 1983. He alleges that defendant, Keith Higgins, a correctional officer with the California Department of Corrections and Rehabilitation (CDCR), used excessive force on plaintiff in violation of the Eighth Amendment. Defendant's motion for summary judgment is before the court. Plaintiff also asks for summary judgment, but that request is not timely and good cause does not support waiving the dispositive motion deadline; that request will be denied. See Docket Entries 14, 23 & 50.
I. Standard of Review for Summary Judgment
Summary judgment is appropriate when the movant demonstrates 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. Seeid. 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. SeeAnderson 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). The opposing party must also demonstrate that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, seeWool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
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 need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. SeeMatsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. SeeRichards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
Many material facts in this case are undisputed. At all times relevant, plaintiff was a prisoner at California State Prison-Sacramento. The incident that forms the basis for this action occurred on June 4, 2006, while plaintiff was working his assigned job at the prison dining hall. SeeCompl. Section IV; Answer ¶ 4. Officer Higgins was on duty in the dining hall at that time. See Def.'s Undisputed Fact (DUF) No. 3. According to plaintiff's deposition testimony, he and Higgins had a history of joking around. See Gonzalez Dep. Tr. at 17:3-25. Their interaction had included plaintiff's joking with Higgins about his eyeglasses "quite frequently." Id. at 18:2.
It is not disputed that a statement plaintiff made about Higgins' eyeglasses on June 4, 2006 triggered the altercation that is now the subject of this case. Specifically, plaintiff testified, "I asked him, hey, Mr. Higgins, do you go out in public looking like that with the big old eyeglasses? That's when he got mad." Id. at 23:19-21; seealso DUF Nos. 9-10 ("Plaintiff Gonzalez made comments to Defendant Higgins that Plaintiff Gonzalez saw has [sic] caused Defendant Higgins to become angry"). Then, according to Higgins' own rendition of the facts, Gonzalez stood up and Higgins stood up, then Gonzalez looked at Higgins. Higgins struck Gonzalez in the left and right cheek. Gonzalez raised his hands in front of himself. Plaintiff Gonzalez fell on the floor on his back. Higgins rolled Gonzalez on his back and placed him in handcuffs.
Def.'s Mot. at 3:24-4:2 (citing DUF Nos. 12-16). Plaintiff claims that Higgins struck him with his fist. See Gonzalez Dep. Tr. at 20:3-4.
Gonzalez received medical treatment the same day as the incident. See Def.'s Ex. 1. The prison medical report indicates reddened areas on both sides of plaintiff's face and shows that plaintiff told the prison medical attendant, "I'm fine." Id. Plaintiff received no further medical treatment as a result of the altercation. Gonzalez Dep. Tr. at 28:11-13. He was not prescribed medication for his injuries. Id. at 29:3-5. Plaintiff claims that as a result of the incident, he has "suffered injuries to his right side and left side of his facial area which effected [sic] Plaintiff's mobility, eyesight, and the movement of his jaw, which still cause's [sic] Plaintiff pain and suffering, Physical and emotional stress." Compl. at 4:7-11.*fn1 In his deposition, he stated that "[t]he nature of the stress is when I get around officers that I don't know who are -- that I know from the past, I get paranoid. I can't trust people around me anymore." Gonzalez Dep. Tr. at 28:21-24. Plaintiff also stated in his deposition that he is bipolar and a paranoid schizophrenic. Seeid. at 10:12. No records have been submitted confirming his psychological diagnoses, if any indeed have been made. Plaintiff also says he takes medication and receives counseling for his bipolar condition. Seeid. at 11:7-14.
The prison's internal review suggests there was some dispute as to whether plaintiff or Higgins threw the first punch in the altercation. Higgins filed an incident report on the same day as the altercation, in which he stated that the first act of aggression occurred when "Gonzalez took a bladed stance and with a open right hand struck my left cheek. This was enough force to knock my glasses off my face." Opp'n, Ex. C. The medical report for Higgins likewise reflects that he stated to the medical attendant that the "inmate slapped me across the face." Id., Ex. D. Higgins provided the same version of events in his rules violation report, which precipitated a disciplinary hearing against plaintiff. See id., Ex. G. At the hearing, plaintiff pled not guilty and stated that "[w]hen I saw [Higgins] getting angry, I ...