FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending is the motion for summary judgment filed on behalf of defendants Albonico and Wheeler.
This action proceeds on the June 13, 2006, complaint in which plaintiff claims that defendants Albonico and Wheeler attacked him and restrained him in retaliation for plaintiff's exercise of his First Amendment rights and that this attack constituted an excessive use of force in violation of the Eighth Amendment. Compl., at 2-3. Defendants seek summary judgment only on the retaliation claim. For the reasons explained below, defendants' motion must be denied.
At all times relevant to this action, plaintiff was a prisoner at High Desert State Prison ("HDSP"). Defs.' Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF"), SUF 1. Defendants Wheeler and Albonico were guards at HDSP assigned to Search and Escort ("S&E"). Defs.' Mot. for Summ. J., Docs. Lodged in Supp. Thereof ("Pl.'s Dep."), Pl.'s Dep., at 27. Also during the time relevant to this action, HDSP was on lockdown.*fn1 Id. at 19.
Defendants' motion addresses prison procedures related to inmate access to supplies necessary to file documents in the courts and physical access to the law library during a lockdown. For large packets of paper to be stapled, prisoners were allowed to use an industrial stapler, which was located in the Program Office.*fn2 Pl.'s Dep., at 24. While a large "industrial" stapler used to be kept in the law library, at some point prison officials moved it to a location where prisoners did not have free access to it after a prisoner used part of it to make a weapon.*fn3
Id. Because of the lockdown, the only way prisoners could go to and return from the law library or the program office was to be escorted, usually by officers assigned to S&E. Id. at 28. When returning prisoners to their cells, the S&E guards ordinarily would enter the law library and escort whoever is ready to leave and volunteers to go at that time. Id. at 28, 29. Prisoners were not at liberty to go to the Program Office of their own free will. Id. at 28. Plaintiff concedes that he knows of no policy that requires S&E officers to take prisoners to use the stapler, but asserts that they did it anyway. Id. at 27, 28.
On May 18, 2005, plaintiff was scheduled to have time in the law library in order to comply with a filing date in the United States Supreme Court. Pl.'s Dep., at 17. Although his time in the library was to begin at 12:30 p.m., no one arrived to escort him until 2:50 p.m., which is about 15 minutes before the library was to close.*fn4 Id. at 18, 23. From the time he left his cell, plaintiff was restrained by waist-chains. Id. at 28. Thus, there was a chain around his waist to which his handcuffed hands were attached by a six-inch chain. Id. at 38. Wheeler and Albonico were standing in front of the library door when he arrived. Id. at 24. Plaintiff told them that he needed copies and that he needed to use the industrial stapler after the copies were made. He showed them a letter from the United States Supreme Court stating that only documents that were stapled would be accepted for filing. Id. at 17, 23. Confronted with plaintiff's request, Wheeler said that plaintiff could either use the law library or he could return to his cell. Id. at 24. Plaintiff wanted to use the library, and they admitted him. Id. Since he arrived too late to do research, plaintiff only requested that the law librarian, Mr. Thompson, make photocopies of two different sets of documents. SUF 2; Id. at 23-24. About five minutes later, while plaintiff was waiting for the copies to be made, defendants Wheeler and Albonico entered the library to escort the prisoners back to their cells, saying they would escort whoever was ready to go. SUF 3; Id. at 24, 30. Plaintiff approached them at the door to the library and again asked whether he could use the industrial stapler before returning to his cell. Pl.'s Dep., at 24, 30. He testified that he was not hostile, aggressive or demanding in his demeanor or attitude. SUF at 3; Pl.'s Dep., at 24. Wheeler refused, telling plaintiff that he was going to take plaintiff back to his cell. SUF 4, 5; Pl.'s Dep., at 25. Plaintiff asked to be escorted last, after the other eight prisoners had been escorted, because he wanted to wait for the rest of his copies to be made. SUF 6; Pl.'s Dep., at 25. Wheeler denied his request and announced that he planned to escort plaintiff first. Pl.'s Dep., at 25, 27. Plaintiff said he would not return to his cell without his copies and asked for the guards' names. Id. at 25, 27. He copied Alboinico's name from the guard's name tag. Id. at 27. Plaintiff told both Albonico and Wheeler that he intended to file a grievance about Wheeler's refusal to take him to the program office. Id. at 32. He then walked away from Wheeler and Albonico over to the counter where Mr. Thomas was making plaintiff's copies. Id. at 29. At the same time, he asked other prisoners present whether they saw Wheeler refuse to help plaintiff and invited them to be witnesses on his behalf. Id. at 29, 30. He also asked Thomas for his copies. Before Thomas could bring the copies that were done, Wheeler told plaintiff that he had to leave right then. Id. at 29. While at the counter, plaintiff wrote down the names of at least two prisoners, Alexander and Sessions. Id. at 27, 29, 31.
According to plaintiff, while he was writing Sessions' name,*fn5 Wheeler rushed plaintiff from behind, hitting plaintiff so hard that Sessions had to jump back. Id. at 27, 31. Plaintiff could not see Wheeler at the moment of the attack because plaintiff was at the counter with his back turned. Id. at 34. Wheeler grabbed plaintiff by his left arm and plaintiff, who was unable to resist because of the full restrains on him, immediately submitted and went down to the ground. Id. at 34-35, 36. Wheeler went down with him, jumped on his back and started pounding plaintiff in the head. Id. at 35. Wheeler punched plaintiff in the back of the head at least three to five times, slammed plaintiff's face into the floor and pressed it there. Id. at 36-37. While Wheeler was on plaintiff's back, Albonico grabbed plaintiff by the legs, crossed one over the other and jumped on them, pressing down until plaintiff's ankle snapped. Id. at 35, 37-38. Plaintiff was in severe pain, and began screaming that his ankle was broken. Id. at 38. Plaintiff stated that it felt like Albonico used his knees to apply full pressure to one of plaintiff's legs while they were crossed. Id. at 39.
Apparently because of the commotion in the law library, Sergeant Turner came in. Plaintiff claims that instead of helping plaintiff, Turner jumped on the back of plaintiff's ankles. Id. at 40. On Turner's orders, Thomas sounded an alarm and a captain arrived with other officers. Id. Albonico went to get ankle restraints, but could not apply them because plaintiff's ankles were so swollen. Id. Plaintiff was injured such that he could not walk. Id. Therefore, a guard escorted him in a wheelchair. Id. X-rays later verified that plaintiff's ankle was fractured. Id. Plaintiff estimates that the attack by Wheeler and Albonico alone lasted about 20-30 seconds, and the incident ended about 20-25 seconds after Sgt. Turner arrived. Id. at 41.
In addition to a fractured ankle, plaintiff suffered swelling in his temple, and a neck injury.*fn6 Id. at 37, 43-44.
II. Summary Judgment Standards
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.
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 ...