The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the review of the Report and Recommendation (Doc. # 109) issued by United States Magistrate Judge Barbara L. Major, recommending that the Court grant the Motion for Summary Judgment filed by all Defendants (Doc. # 65), deny the Motion for Summary Judgment filed by Defendant Lemus (Doc. # 82), and deny the Rule 56(f) motion filed by Plaintiff (Doc. # 103).
On March 3, 2008, Plaintiff William John Daughtery, a state prisoner proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983 against San Diego Police Officer Dennis Wilson, San Diego Police Officer Esmeralda Tagaban, San Diego Police Sergeant Griffin, and San Diego Police Detective Lemus. (Doc. # 1). The Complaint alleges that Defendants Wilson and Tagaban used excessive force while arresting Plaintiff on March 9, 2006, in violation of Plaintiff's Fourth and Fourteenth Amendment rights. (Doc. # 1 at 3-5; see also First Amended Complaint, Doc. # 25 at 4-6). Plaintiff further alleges that Defendants Griffin and Lemus violated his constitutional rights because they witnessed the use of excessive force but did nothing to intervene. (Doc. # 1 at 2,4; see also First Amended Complaint, Doc. # 25 at 2, 5).
On June 19, 2008, Plaintiff filed a First Amended Complaint adding the City of San Diego ("City") and the San Diego Police Department ("SDPD") as Defendants, and alleging that the City and the SDPD violated his Fourth Amendment rights and committed the "state tort[s]" of "Gov't Code § 810 et seq., assault and battery P.C. 245 and negligence in failure to provide medical assistance." (Doc. # 25 at 7). On July 29, 2008, the City and the SDPD filed a motion to dismiss the claims against them with prejudice. (Doc. # 42). On August 14, 2008, the Magistrate Judge issued a Report and Recommendation recommending that this Court dismiss the City and the SDPD because Plaintiff's claims against the City and the SDPD were barred by the applicable statute of limitations, and Plaintiff failed to comply with the claim presentation requirement of the California Tort Claims Act. (Doc. # 61). On January 28, 2009, this Court issued an Order adopting the August 14, 2008 Report and Recommendation in its entirety and granting the motion to dismiss the City and the SDPD. (Doc. # 86).
On November 19, 2008, all remaining Defendants filed a Motion for Summary Judgment. (Doc. # 65). On January 9, 2009, Defendant Lemus filed an individual Motion for Summary Judgment on the alternative basis that, as a matter of law, he was not present during the conduct alleged by Plaintiff, and therefore he had no opportunity to intervene. (Doc. # 82). Plaintiff filed briefs and other materials in opposition to each Motion. (Doc. # 87, 95, 103, 106). In Plaintiff's sur-reply brief to Defendants' Motion for Summary Judgment, Plaintiff requested that the Court deny Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(f) because Plaintiff needed further discovery to obtain evidence to support his opposition. (Doc. # 103 at 8-9).
On June 15, 2009, the Magistrate Judge issued the Report and Recommendation. (Doc. # 109). The Report and Recommendation summarized the factual background as follows:
This case stems from a March 9, 2006 'buy bust' operation by the San Diego Police Department. That evening, Detective Lemus was operating in an undercover capacity attempting to purchase narcotics from street level dealers in an area known for drug trafficking activity. Other members of the San Diego Police Department's Central Narcotics Division were in communication with Lemus and located nearby. Lemus approached Plaintiff and purchased 'rock' cocaine from him for twenty dollars. Lemus then walked away and communicated a description of Plaintiff to the other officers. Lemus states that he did not lose sight of Plaintiff until he saw a marked police car approach Plaintiff.
The parties agree that the officer who arrived and first contacted Plaintiff was Officer Wilson. Wilson took Plaintiff to the ground and, with his arm around Plaintiff's throat, ordered Plaintiff to spit out what was in his mouth. Plaintiff refused to do so. Shortly thereafter, Officer Tagaban arrived and struck Plaintiff in the shoulder repeatedly with her flashlight. The officers subsequently arrested Plaintiff.
1. Plaintiff's Contentions
Plaintiff contends that 'without giving any orders or any preamble, Wilson exited his car, walked up to [Plaintiff] and grabbed [him] by the front of the throat.' Pl.'s Aff. at 2. According to Plaintiff, Wilson 'exerted strong pressure' on Plaintiff's throat and then 'adjusted his grip and moved to a position where he continued choking [Plaintiff] from behind.' Id. Wilson then kicked Plaintiff's legs out from under him and tripped him to the ground. Plaintiff states that he 'neither provoked, instigated or resisted the attack.' Id. at 4. Yet, despite his complete submission, Wilson demanded he spit out any possible evidence he had in his mouth and banged Plaintiff's forehead on the concrete sidewalk for approximately two minutes.
At that point, Tagaban arrived in full uniform and driving a marked police vehicle. Plaintiff submits that Tagaban immediately began to beat his head and left shoulder approximately twelve times with a large metal flashlight and that Officers Wilson and Tagaban shouted 'spit it out' at him during the alleged beating. Id. Thereafter, Plaintiff 'lost consciousness from the combined beating and choking.' Id. He also contends he suffered serious injury to his forehead, knees, elbows, left shoulder and neck.
During this altercation, Plaintiff asserts that Lemus and Griffin were near the opposite side of the intersection, but neither took any action 'to ...