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Nwandu v. Bach

June 15, 2010

JUDE P. NWANDU, PLAINTIFF,
v.
SERGEANT V. BACH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER (1) OVERRULING PLAINTIFF'S AND DEFENDANTS' ADOPTING REPORT AND RECOMMENDATION; AND (3) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OBJECTIONS TO REPORT; (2)

Pending before the Court is the Report and Recommendation of Magistrate Judge William McCurine, Jr., filed on April 21, 2010, recommending that the Court deny Defendants' motion for summary judgment on the excessive force and deliberate indifference claims as well as their affirmative defense of qualified immunity, but grant Defendants' motion on the retaliation and conspiracy claims in this prisoner's civil rights action. [Doc. Nos. 96 and 83] Both parties filed objections and replies. [Doc. Nos. 97, 99, 100, & 102] Because neither party identified any error in the Magistrate Judge's thorough examination of the record or his clear analysis of the governing law, the Court overrules the objections and adopts the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

A. Defendants' Objections

The Magistrate Judge recommended that the Court deny Defendants' summary judgment motion on Plaintiff's claims of excessive force and deliberate indifference to medical needs because there were genuine and material factual disputes. Defendants object to that recommendation on the ground that Plaintiff's version of the events is implausible, therefore, more than his declaration should have been required to defeat the summary judgment motion on those two claims. Cf. SEC v. Phan, 500 F.3d 895 (9th Cir. 2007) (district court erred by disregarding parties' "uncorroborated and self-serving" declarations describing conflicting version of facts).

The Court overrules the objections. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Here, Plaintiff defeated the summary judgment on two claims, in part, with his own affidavit in which he stated facts within his personal knowledge. United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999) (a party's declaration can often be self-serving, but "properly so, because otherwise there would be no point in his submitting it"); Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999) (non-moving party's declaration of own actions was direct evidence and could not be disregarded as "sham" or "incredible"). Accordingly, the disputed facts must be resolved in trial.

The Court also agrees with the Magistrate Judge's conclusion that Defendants are not, as a matter of law, entitled to qualified immunity when the facts are considered from Plaintiff's point of view.

B. Plaintiff's Objections

Turning to Plaintiff's objections, he largely repeats the contentions he made to oppose the summary judgment motion. The Court has read with care his pro se objections, but concludes that the Magistrate Judge fairly and appropriately applied the facts in the record to the elements of his retaliation and conspiracy claims.

The fact that Defendants allegedly injured Plaintiff's wrists and damaged his typewriter -- thereby impairing his ability to communicate by writing or typing -- does not establish a First Amendment violation. As the Magistrate Judge stated, Plaintiff failed to establish causation. In addition, the evidence showed that Plaintiff continued to exercise his First Amendment rights by filing at least fourteen grievances after the incident.

Accordingly, the Court overrules Plaintiff's objections.

In sum, the Magistrate Judge correctly analyzed Defendants' summary judgment motion. The Court denies Defendants' motion on Plaintiff's excessive force and deliberate indifference to medical needs causes of action, which are based upon the Eighth Amendment. The Court denies the motion to the extent that it sought summary adjudication of the qualified immunity defense. The Court grants Defendants' motion on the claims of retaliatory property deprivation and conspiracy under the First and Fourteenth Amendments.

C. Dismissal of Defendants Davila and Taylor

One clarification. The Report lists Defendants Bach and Castillo as the only named defendants in the two causes of action that will proceed to trial. Report at 8. Similarly, the opening and opposition briefs explicitly refer to the defendants by name, that is, the parties treated Bach and Castillo as the specific defendants named in the excessive force and deliberate indifference causes of action, and discussed only Davila and Taylor in connection with the deprivation of property cause of action. [Doc. Nos. 83 & 87] (All four defendants were named in the conspiracy count, but Defendants prevailed on their summary judgment motion.) It appears, therefore, that co-defendants Davila and Taylor could be dismissed from the action. The Report does not address the issue, however, which raises a procedural question of notice and a substantive issue on liability.

The underlying record is ambiguous as to the Plaintiff's intent to hold all four defendants liable for all claims.*fn1 The Court is cognizant of its obligations to liberally construe the pro se's pleadings and to ensure that the merits of the civil rights claims are not trumped by technicalities. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Here, Defendants notified Plaintiff of the requirement to submit evidence to oppose the motion, and the consequence that if the Court granted their summary motion, that his entire case would end without a trial. Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). [Doc. No. 83] Moreover, the District Court's orders distinguish between the two guards named in the excessive force claim (Bach and Castillo) and the two involved in the deprivation of property claim (Davila and Taylor).*fn2 E.g., Order Adopting Report and Recommendation as Modified at 4 & 7 (listing two defendants in excessive force and deliberate indifference claims). [Doc. No. 35] As to the ...


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