The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint filed October 14, 2005. Plaintiff alleges that defendants, correctional officers White and Whitehead, used excessive force against him. Pending before the court is defendants' motion for summary judgment (Doc. 79), filed July 9, 2009. Plaintiff filed an opposition (Doc. 82), on July 27, 2009.
II. Plaintiff's Allegations
Plaintiff alleges that defendant White instructed plaintiff to return to his cell.
Opposition to Summary Judgment (Opposition) at 3. Plaintiff was standing in front of his cell and did not go inside and instead asked to speak to a sergeant. Id. White again ordered plaintiff to return to his cell, but plaintiff again requested to speak to a sergeant. Id. White then approached plaintiff, grabbed him and attempted to throw plaintiff into the cell. Id. Plaintiff states he removed himself from White's grasp and then stood still. Id. White proceeded to pick plaintiff up and slam him to the ground. Id. White then pinned plaintiff to the ground putting his forearm into plaintiff's throat. Id. At this moment, defendant Whitehead arrived and attempted to use her pepper spray, but it would not work, so Whitehead struck plaintiff in the face and head with the pepper spray canister. Id. Other officers arrived to restrain plaintiff and they picked him up, handcuffed him and escorted him away. Id. Plaintiff suffered scratches, bruises and a cut to his lip. Id. at 11.
Defendants contend there are no issues of material fact as defendants' use of force did not rise to the level of a constitutional violation and they are entitled to qualified immunity.
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. ...