The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is the motion for summary judgment filed on 5/14/08 by defendants Gooler, Leon and Long, to which plaintiff filed his opposition, on 5/27/08. Defendants' reply, filed on 5/28/08, simply states that defendants submit the motion on their moving papers. "Final" Amended Complaint*fn1
While this action was originally filed on October 6, 2004, it now proceeds on his "final" (or second) amended complaint, filed on November 7, 2006, which defendants answered on Nov. 9, 2006.
In the final amended complaint (FnAC), plaintiff alleges that, on October 3, 2003, at around 12:30 a.m., on his way to a friend's residence to provide the friend a ride to his vehicle, plaintiff stopped his Chevrolet Blazer at the corner of Darwin Street and Kathryn Way in the City of Sacramento, then proceeded past the intersection to make a left turn on El Camino Avenue. FnAC, pp. 7-8. At that point, plaintiff saw the emergency lights on a white police vehicle activate and alleges that, in an attempt to evade police because he had allowed his vehicle registration to expire and was certain his car would be impounded, he sped up and evaded police for about ten minutes until "the 'PIT' maneuver was performed by the pursuit vehicle," forcing plaintiff to a stop on a residential lawn. Id. at 8. Plaintiff, still trying to escape, attempted to move his vehicle forward onto the street to drive away, at which point another police car rammed the passenger side door, stopping him. Id.
Plaintiff then exited the Blazer "and took off"; after plaintiff was running, taking several steps away from the vehicle, a K-9 police dog grabbed plaintiff by his upper right thigh, the force of which caused plaintiff to go face first onto the paved street. Id. Plaintiff writhed in pain while the police dog continued to bite and tug at his upper thigh. Id. About thirty seconds later, plaintiff was surrounded by "a swarm of deputies." Id. Defendant Sacramento County Deputy Sheriff Timothy Wetzel arrived first, according to plaintiff, jamming his knee into plaintiff's back, grabbing plaintiff's left arm and twisting it up and around behind plaintiff's back, and striking plaintiff on the back of his head with a metal flashlight, approximately eighteen inches long. Id. Plaintiff made eye contact with defendant Wetzel; plaintiff screamed out in pain because the blows were so excruciating. Id. at 8-9.
"Almost simultaneously," four other sheriff's deputies surrounded plaintiff, and shortly thereafter blood began to flow down plaintiff's back and face. Id. at 9. Defendant Wetzel grabbed plaintiff's right arm, pulling it around and back and fastening handcuffs so tightly that plaintiff screamed loudly for this defendant to stop. Id. The police dog continued to bite and rip at plaintiff's upper thigh after the handcuffs were secured. Id. As the five defendant deputies began kicking and punching plaintiff on his torso and back, plaintiff observed defendant Sacramento County Deputy Sheriff Timothy Albright kneeling to the right of the K-9 police dog, named Stazzo, holding Stazzo's mid-section with both arms, pulling back and forth, tearing at plaintiff's thigh, coaxing the dog to continue its assault, saying: "Good Boy, Good Boy!!" Id. Plaintiff made eye contact with defendant Albright, begging him to order the dog to stop biting him to no avail; instead defendant Albright responded by smiling as he continued to excite and incite the dog. Id. Although plaintiff was not resisting, another officer, whom plaintiff believes to have been defendant Wetzel, was twisting plaintiff's arms up as plaintiff lay face down, still in Stazzo's grasp. Id. Only after one of the officers yelled "Blood! Blood!" did defendant Albright order the dog to "release" plaintiff. Id.
Plaintiff was unsure of who did what but he could feel and hear the defendants, especially the "foul, angry, venomous" epithets shouted about plaintiff by defendant Deputy Gooler, whom he believes is one of those who inflicted kicks and punches upon him as plaintiff lay face-down handcuffed. FnAC, pp. 9-10, 12. Defendant Deputy Corrie "stepped up to the plaintiff's head and did a football style drop-kick." Id. at 10. Plaintiff was able to make eye contact with this defendant as well. Id. Because defendant Deputy Long was riding as a partner in the same vehicle as defendant Corrie, plaintiff assumes defendant Long was involved in the "attack" upon him as well, and believes Long to have kicked and punched him as well during the incident. Id. at 10, 12-13. Plaintiff began drifting in and out of consciousness after the kick to the head. Id. Plaintiff has also named Deputy Leon as a defendant because his name figures in many of the reports plaintiff has "discovered," and plaintiff avers that defendant Leon was present and was a witness and/or participant in the arrest incident from which plaintiff's excessive force allegations arise. Id. Plaintiff alleges that defendants Gooler and Long actively participated in the attack upon him, and that defendant Leon may well have as well. Id. at 11-13.
Plaintiff seeks to proceed on a Fourth Amendment claim that his right to be free of excessive, unjustified force during his arrest was violated by defendants. Id. at 10. Plaintiff states that he believes the actions of the defendants were retaliatory, which he conjectures accounts for the alleged viciousness of the attack. Id. at 10-11. He states that what motivated the violence was that the defendants erroneously believed that plaintiff was someone who had escaped them earlier, although plaintiff goes on to say that he was convicted of crimes which he did not commit, which conviction is on appeal. Id. at 11. He claims that a charge against him of assaulting the K-9, Stazzo, was dropped so that the prosecution would not have to allow at trial the gory photos of injuries inflicted upon plaintiff while he was helpless. Id. The court notes, of course, that the circumstances of plaintiff's criminal trial, conviction and appeal, of course, are irrelevant to this civil rights action.
Plaintiff was able to obtain color photographs that the Sacramento County Sheriff's Dept. took of him while he was unconscious and bleeding on the ground. Id. Plaintiff alleges that there were additional Sacramento County Sheriff's Dept. close-up photos taken of plaintiff's "gaping wounds" at the U.C. Davis Medical Center, which defendant Leon, who escorted plaintiff to the medical center witnessed. Id. Plaintiff seeks unspecified money damages only, including punitive damages.*fn2 Id. at 14.
Motion for Summary Judgment
This motion is brought on behalf of three of the six named defendants on the ground that defendants Gooler, Leon and Long are entitled to judgment as a matter of law because there is no material fact in dispute and no evidence establishes that these defendants used excessive, or any, force against plaintiff. Motion for Summary Judgment (MSJ), pp. 1-8.
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, 106 S.Ct. 2548, 2553 (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, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.
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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, 106 S.Ct. 2505, 2510 (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 need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (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. See Anderson, 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. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. 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. See Richards 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 ...