FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter is before the court on defendants' motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion, and defendants have filed a reply.
Plaintiff is proceeding on his first amended complaint. Therein, he alleges as follows. On April 3, 2007, a riot occurred between ten Asian/Pacific Islander inmates and ten Norther Hispanic inmates at High Desert State Prison (HDSP). The two groups were engaged in fist to fist combat. During the riot prison guards used pepper spray and tear gas in an attempt to stop the violence. Several shots from a "40mm launcher," as well as three shots from a Mini-14 rifle, were also fired. (Am. Comp. at 3.)*fn1
Plaintiff, an Asian/Pacific Islander, was involved in the riot and was defending himself from an attack by a Northern Hispanic inmate when defendant Smith fired his Mini-14 rifle, striking plaintiff in his left upper arm. After being shot plaintiff was approached by defendant Look who ordered plaintiff to submit to being handcuffed. Plaintiff informed Look that he had been shot in the arm. Look then handcuffed plaintiff, grabbing his arms and pulling them behind his back, damaging the muscles, tendons, and nerves in plaintiff's wounded arm. Plaintiff remained handcuffed on the ground for some time, causing more damage to his wounded arm. (Am. Comp. at 3-4.)
Plaintiff alleges that prior to the riot on April 3, 2007, there had been an ongoing conflict between Asian/Pacific Islander inmates and Northern Hispanic inmates at HDSP for two years. Just before the riot, plaintiff and his fellow Asian/Pacific Islander inmates were summoned to the office of Defendants Wright and Schirmer. There, they were informed that ten Asian/Pacific Islander inmates and ten Northern Hispanic inmates were going to be released off lock-down and returned to normal programing. Plaintiff and his fellow inmates informed Wright and Schirmer that they were going to file a complaint alleging that Wright and Schirmer had unlawfully retaliated against the Asian/Pacific Islander inmates by initially placing them in Administrative Segregation. (Am. Comp. at 4.)
Plaintiff also alleges that on December 19, 2007, approximately eight months after the riot, plaintiff was in Administrative Segregation. Defendant Smith was serving dinner trays when he approached plaintiff's cell with his dinner tray. Smith then stated "Hey, you're that dude I shot during that riot a couple months back, huh, you kinda had that coming anyway for what your homies did to my partner on A-Yard last year, you know what's up you and your homies stick together and me and my homies stick together." Smith then handed plaintiff his dinner tray and continued on to serve the other prisoners while smiling. (Am. Comp. at 7-8.)
Plaintiff's amended complaint seeks relief with respect to his claims that defendants Smith and Look used excessive force against him, that defendants Schirmer and Wright failed to protect him, and that defendants Schirmer, Wright and Smith retaliated against him. (Am. Comp. at 8-21.)
On June 4, 2008, the court ordered the United States Marshal to serve plaintiff's complaint on defendants Look, Schirmer, Smith and Wright. On August 8, 2008, defendants moved to dismiss the entire action pursuant to non-enumerated Rule 12(b) due to plaintiff's alleged failure to exhaust his administrative remedies.
On November 20, 2008, the undersigned issued findings and recommendations, recommending that defendants' non-enumerated Rule 12(b) motion to dismiss be granted as to plaintiff's claims that defendants Schirmer and Wrights failed to protect or retaliated against him. However, the court recommended that the motion to dismiss be denied as to plaintiff's claims that Smith and Look used excessive force and as to plaintiff's claim that Smith retaliated against him. On March 9, 2009, the assigned district judge adopted those findings and recommendations in full. On May 7, 2009, defendants Smith and Look filed an answer. On May 11, 2009, the undersigned issued a discovery order.*fn2
On January 13, 2010, defendants filed the instant motion for summary judgment, arguing that: (1) the evidence submitted in support of the motion established that defendants Smith and Look did not use excessive force against plaintiff; (2) plaintiff's excessive use of force claim should be raised in a habeas petition and not in a § 1983 action; and (3) defendants Smith and Look are entitled to qualified immunity.
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
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 (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. "[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.
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 (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. 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 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita, 475 U .S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. § 1983
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. Eighth Amendment and Excessive Force
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. CONST. AMEND. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.
What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim the plaintiff must show that objectively he suffered a "sufficiently serious" deprivation. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
It is well established that "whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley, i.e., whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7.
"Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions for the court are (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a ...