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Thomas v. Diaz

August 5, 2009

LARRY THOMAS, PLAINTIFF,
v.
J. DIAZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court is Defendants' Motion for Summary Judgment (Docket No. 35), filed March 23, 2009. Having reviewed the motion and relevant portions of the record, the Court concludes that oral argument is unnecessary to resolve the Motion. Accordingly, the Court enters the following Report and Recommendation.

REPORT

I. FACTUAL BACKGROUND

On June 29, 2006, while incarcerated at Pleasant Valley State Prison, Plaintiff was exiting Building 3 and ignored Officer Diaz's orders to stop walking. Plaintiff claims Officer Diaz was trying to stop him from speaking with the facility lieutenant. Officer Rangel ordered Plaintiff to put his hands on the wall and Plaintiff complied. Officer Rangel tried to verbally calm Plaintiff. Plaintiff alleges he told Officer Diaz that he was going to speak with the facility lieutenant regarding a cell transfer. Officer Diaz grabbed Plaintiff's left hand and a struggle ensued.

Approximately twenty seconds later, Officer Rangel assisted Officer Diaz in bringing Plaintiff to the ground. Plaintiff alleges he was never told to "get down" nor did he offer any resistance. Taking Plaintiff to the ground took approximately two to three seconds.

Plaintiff claims his face was deliberately pushed against the asphalt by Diaz and Defendants*fn1 sat on his back and legs. He also alleges that Officer Diaz deliberately gouged his fingers into Plaintiff's eyes. Officers Rangel and Jordan attested that they never sat on Plaintiff or applied unreasonable pressure to his back or any body part. Plaintiff remained on the ground for approximately twenty to thirty seconds while Officers Jordan and Deathridge handcuffed him. Officer Jordan believed that the handcuffs were applied appropriately. At the time, Plaintiff never complained that the handcuffs were too tight. Plaintiff now alleges that the handcuffs were put on extremely tight and cut into his wrists and hands, restricting blood flow.

Officers Jordan and Deathridge escorted Plaintiff to the medical facility which took about 30 to 45 seconds. During the escort, Officer Jordan raised Plaintiff's hands because he believed that Plaintiff was trying to grab his hands. Plaintiff alleges the handcuffs were pushed upwards by Officers Jordan and Deathridge, forcing him into a bent over crouch, rather than walking upright. He claims during the escort, Officer Diaz walked along side him with his baton drawn, yelling abusive statements. Once they arrived at the medical facility Plaintiff claims he was shoved into a cell by Officers Jordan and Deathridge and the handcuffs were not removed. As a result of these actions, Plaintiff claims he lost feeling and sensation in his left hand for five months, scars remained on his wrists for 70 days, and his existing lower back pain was greatly aggravated.

II. Procedural Background

Plaintiff filed his complaint on April 6, 2007. (Docket No. 1). After an order dismissing Plaintiff's complaint with leave to amend was filed, Plaintiff notified the Court that he wished to proceed only on the claims recognized as viable. On February 26, 2008, the Court recommended dismissal of all of Plaintiff's claims except for his claim of excessive force against Defendants Diaz, Rangel, Jordan and Deathridge. (Docket No. 11).

On June 17, 2008, Defendant Deathridge was dismissed for lack of service because Plaintiff had failed to show good cause why he had not been served. (Docket No. 22). On September 9, 2008, Defendants filed a suggestion of death for Defendant Diaz. (Docket No. 28). The Court held that Rule 25's 90-day time period had not been triggered because there was no declaration of service or other proof reflecting that there has been proper service of the suggestion of death on the nonparty successors or representatives of Defendant Diaz. (Docket No. 29).

On March 23, 2009, Defendants Jordan and Rangel filed a motion for summary judgment. (Docket No. 35). Plaintiff did not file any opposition or response.

III. Discussion

A. Summary Judgment ...


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