FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff alleges that, on September 16, 2005, defendant Justin used excessive force in violation of his civil rights. Defendant Justin, the sole remaining defendant, moves for summary judgment on plaintiff's claim. Having considered all of the papers filed by the parties, the court finds that defendant's motion must be denied.
The following facts are undisputed, except as noted below. During September 2005, plaintiff was an inmate housed in administrative segregation at California State Prison, Solano. Def.'s Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF") 1; Pl.'s Sept. 17, 2008 Dec. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Dec.") ¶ 4. Defendant was the Housing Sergeant for plaintiff's housing unit and had the authority to make and recommend housing changes as necessary. SUF 8.
On September 16, 2005, defendant asked that plaintiff be escorted to defendant's office to discuss plaintiff's housing status. Id. at 10. Plaintiff was handcuffed and escorted to defendant's office where he was ordered to sit in a chair on the opposite side of defendant's desk. Id. at 11, 25; Def.'s Mot. for Summ. J., Ex. A, Dep. of Pl. ("Pl.'s Dep.") at 16:14-17:9.
Plaintiff and defendant discussed plaintiff's housing and yard status, and the conversation became heated. SUF 15-17. At his deposition, plaintiff testified that defendant asked the escort officer to leave the room, and subsequently, threatened to beat plaintiff because plaintiff was refusing to accept a cellmate. Pl.'s Dep. at 19:16-21, 20:6-21, 21:5-9. Plaintiff further testified that defendant then "stood up like he was going to come put his hands on me like he said." Id. at 23:1-8. According to defendant, however, he stood up for the purpose of ending the meeting because plaintiff was yelling and swearing at him. SUF 18, 19. Plaintiff, who admitted he was angry, then stood up and said to defendant, "F you Negro, you better not put your hands on me." Id. at 17, 19. According to defendant, plaintiff threatened him, and perceiving a potentially dangerous situation that could turn physical, he put plaintiff against the wall and called out for assistance. Id. at 20, 24, 26. Plaintiff was then removed from defendant's office and escorted back to his cell while telling defendant to "take the cuffs off and be a man." Id. at 21.
Plaintiff testified at his deposition that defendant came from around his desk, grabbed him by his shoulders, spun him, and slammed him against the wall. Pl.'s Dep. at 23:15-25. Plaintiff also states he had to turn his head to avoid a broken nose. Pl.'s Dec. ¶ 7. Plaintiff denies threatening or resisting defendant and states that the only reason defendant used force was because plaintiff refused to accept a cellmate. Id. at ¶ 8.
Plaintiff had a bruise on his right shoulder from the incident and precautionary x-rays of the shoulder revealed no injury. SUF 22, 27, 28. Plaintiff testified, however, that he received pain medications for over a year and that he still takes pain medication when his shoulder aches. Pl.'s Dec. ¶¶ 6, 9; Pl.'s Dep. at 54:16-55:5. Plaintiff also testified that his shoulder does not bother him "too much" when he is doing general day to day activities, but that it is aggravated when he runs fast and swings his arms. Pl.'s Dep. at 54:1-10. Plaintiff also states that his shoulder has a limited range of motion and is awaiting a referral for an orthopedic evaluation and a MRI. Pl.'s Dec. ¶¶ 6, 9, 10.
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant 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) (internal quotations omitted).
Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See Northwest Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex, 477 U.S. at 323.
Focus on where the burden of proof lies as to the issue in question is crucial to summary judgment procedures. "[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. 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 opposing party must 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). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim 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 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 this regard, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. In attempting to establish the existence of a factual dispute that is genuine, 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, ...