The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment, filed on October 7, 2009 (docket # 61), by defendants Lozano, Cantu, Cortez and Williams, to which plaintiff filed his opposition on November 3, 2009 (docket # 65), along with a copy of defendants' interrogatory responses (docket # 66), after which defendants filed their reply on November 10, 2009 (docket # 68). Also pending are three motions by plaintiff: (1) a motion for sanctions, filed on December 29, 2009 (docket # 69); (2) a motion for clarification, filed on December 30, 2009 (docket # 70); and (3) a motion to treat defendants' failure to oppose the motion for sanctions as non-opposition to that motion, filed on April 5, 2010 (docket # 72).
Court records indicate that this action originated on September 14, 2006, in the Northern District, from which it was transferred by order filed in this court on September 20, 2006 (docket # 1). Following this court's order, filed on April 6, 2007 (docket # 5), dismissing the vast majority of the defendants named in the original complaint, but granting plaintiff leave to amend, plaintiff filed an amended complaint on May 4, 2007 (docket # 7). The court found that plaintiff had made cognizable claims in the amended complaint as to defendants Lieutenant (Lt.) Lozano; Lt. B.C. Roszko; Lt. Sandy; Sergeant (Sgt.) Orrick; Sgt. Flete; Sgt. Durfey; Sgt. C.L. Williams; Correctional Officer (C/O) Cantu; and C/O Cortez. See order, filed on October 23, 2007 (docket # 9).
Subsequently, by order filed on February 19, 2009 (docket # 38),*fn1 the motion to dismiss filed by defendants Durfey, Flete, Orrick, Roszko, and Sandy was granted; these defendants were dismissed, and the matter was to proceed only as to the previously answering defendants. Thus, the matter proceeded at that point only as to defendants Cantu, Cortez and Williams. Thereafter, however, following the court's show cause order why defendant Lozano should not be found in default (see order, filed on January 8, 2009 (docket # 30)), the court in a January 26, 2009, order (docket # 32), found Lozano's response discharged the show cause order and determined that defendant not to be in default; the court also deemed defendant Lozano's answer filed as of January 26, 2009. Therefore, there are four defendants who remain and who bring the instant summary judgment motion: Lozano, Cantu, Cortez and Williams and only allegations related to those defendants remain at issue.
Summary of Amended Complaint
In the remaining allegations, plaintiff alleges violations of his rights under the Eighth Amendment for defendants' failure to protect him, for inadequate medical care, and for the use of excessive force. Plaintiff, an inmate from Puerto Rico, alleges that defendant Williams repeatedly ignored his safety concerns about being housed with a self-identified Northern inmate from mid-October 2005, until February 2, 2006. In addition, defendant Williams, according to plaintiff, exacerbated the situation by yelling about his complaint at plaintiff in a manner that could be overheard by other inmates more than once. On February 2, 2006, defendant Williams yelled to the effect that plaintiff wanted to have black inmates moved from their cells, after which an inmate named Socorro approached him about what he had overheard and plaintiff was later attacked by this individual. Plaintiff was treated and reportedly had an elbow scrape.
When plaintiff was in the holding cage with restraints, plaintiff complained of his pain and discomfort to defendant Cortez, who ignored plaintiff's requests to loosen the cuffs. After plaintiff began to kick his cage, the too-tight cuffs were removed. Defendant Cortez then ignored plaintiff's request to be taken to the clinic for a wrist injury from the handcuffs.
When plaintiff began to kick the holding cage again for attention, defendant Lozano ran in and threatened plaintiff with a can of O.C. [pepper] spray, but refused plaintiff's request to be seen by medical. Fifteen minutes later, defendants Cortez and Cantu came and told plaintiff to "cuff up" for an escort to medical, but instead they led plaintiff to Ad Seg.*fn2 When plaintiff stopped to ask why, defendants Cantu and Cortez took him down using excessive force from which plaintiff suffered injuries in addition to the previous wrist injury from the cuffs. Plaintiff seeks primarily money damages. Because his allegations against defendants Orrick and Flete have been dismissed, his limited reference to a form of injunctive relief having to do with constraining the future actions of these parties has been rendered moot. See Amended Complaint (AC), pp. 5, 8-17.
Plaintiff asks that defendants' motion for summary judgment be denied because plaintiff failed to be served timely with defendants' motion for a five-day extension of time to file their dispositive motion. Plaintiff maintains that he received a copy of the October 3, 2009, order granting defendants the additional five days to file their motion for summary judgment before he received any notice of the motion. Plaintiff states that he only received a copy of the motion after filing an ex parte letter to Judge England. The letter he references was docketed on October 13, 2009 (doc. # 64). Absent an express waiver of service, plaintiff is correct that the parties are obligated to serve documents they file upon all parties, including upon a pro se party. Local Rule 135(d) and (e); see also, Fed. R. Civ. P. 5. The copy of the motion plaintiff attaches to the instant motion, filed on December 29, 2009 (doc. # 69) as well as the original request itself, filed on September 25, 2009 (doc. # 59), contains a proof of service indicating that plaintiff was served with the request on September 25, 2009. Like most, if not all, such requests made by the Attorney General's Office, the supporting declaration states that as plaintiff is a pro se inmate, he cannot reasonably be contacted prior to making the request. Declaration of Rebecca Armstrong-Grau, Doc. # 59, ¶ 6. The request was the only extension of time sought for the filing of the summary judgment motion and was primarily based on a delay in locating a video-taped interview in support of the motion. See, id., ¶¶ 3, 5. In his motion for sanctions, plaintiff does not assert an objection predicated on the basis for the request, only contending that defendants should be sanctioned for failing to serve him with the request, an objection which is belied by the representation, under penalty of perjury, that he had, indeed, been properly and timely served. It is unknown why the document did not reach him sooner, but in any event, the court finds that plaintiff's not having received it timely, or even if it did not reach him at all at the prison until he filed a letter about it, does not constitute a basis for sanctioning the defendants by having their summary judgment motion summarily denied. This motion will be denied. Also denied is plaintiff's April 5, 2010 (doc. # 72), motion to treat defendants' failure to oppose his motion for sanctions as non-opposition to the motion.
By this motion, plaintiff asserts that he did file objections to the August 25, 2009 (doc. # 53), findings and recommendations of the undersigned, recommending denial of plaintiff's motion, pursuant to Fed. R. Civ. P. 54(b), for the order dismissing several defendants to be certified as a final judgment for appeal, which was adopted by order, filed on Nov. 6, 2009. (doc. # 67). The November 6, 2009, order states that neither party filed objections, but plaintiff in the instant motion attaches a document which is entitled "objection to magistrate judge's findings and recommendations filed 8/25/09"; the attached filing also has a certificate of service indicating that it was filed/served on September 16, 2009. Unfortunately, there is no record in the docket of this case that those objections were ever filed, other than belatedly as attached to this motion for clarification.
Within the attached objections that were not filed in this court when plaintiff insists that they were, plaintiff, inter alia, contends that defendant Lozano had failed to respond to his discovery requests. It is unclear in the filing if plaintiff is intending to say that Lozano had not filed discovery responses by September 16, 2009, or as of late December, 2009. The appropriate procedure if he was seeking discovery responses from defendant Lozano would be to bring a motion to compel discovery, not to bury his observation among the grievances he listed in his September 16, 2009, objections which the court did not receive timely, and which still do not appear as separately filed in the case docket. Nor does he ask the court therein to direct defendant Lozano to file responses to plaintiff's discovery requests, seeking rather that he be found to be in default for his failure to timely respond to the complaint as well as his failure to respond to discovery. However, plaintiff's focus in the objections was to be permitted to proceed on appeal as to the previously dismissed defendants. Moreover, at no point does plaintiff clarify when his discovery requests were served upon defendant Lozano. And, as noted above, the court had previously found defendant Lozano not to be in default. See also, discussion below regarding defendant Lozano. Construing plaintiff's motion for clarification primarily as a motion to be allowed to have his objections to the August 25, 2009 (doc. # 53), findings and recommendations which were only belatedly received almost two months after the order adopting those findings and recommendations had been signed and filed, the motion is denied. Motion for Summary Judgment
Defendants move for summary judgment as to all claims contending that no defendant violated plaintiff's constitutional rights, and they are entitled to qualified immunity because there was no constitutional right violated and defendants acted reasonably. Motion for Summary Judgment (MSJ), pp. 1-13.
Legal Standard for Summary Judgment
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. 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, 106 S.Ct. at 1356 (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, 106 S.Ct. at 1356. 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, 106 S.Ct. at 1356 (citation omitted).
On November 26, 2007 (doc.# 11), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
Plaintiff makes the following specific allegations relating to defendant Williams within his verified amended complaint. After being subjected to what he alleges was a "trump[ed] up" sexual harassment charge, plaintiff, a Viet Nam vet under psychiatric care was placed in Ad Seg in early September of 2005; on September 8, 2005, plaintiff was seen by the ICC*fn3 committee and to be released to yard II, "the main line," pending approval; otherwise, he would go to yard I. AC, pp. 5, 8.
While on yard I, plaintiff, who is from Puerto Rico and a 57-year-old with no gang affiliation, was housed with an inmate from Central America, also classified as "other." AC, p. 8. When plaintiff's cellmate was moved on October 3, 2005, plaintiff learned he was to be housed with a "Northern" inmate in Building 2, and he voiced his safety concerns but was only given the choice of moving in with the Northern inmate or going to Ad Seg, the latter of which he chose for safety reasons (alternatively, he was placed in Ad Seg for refusing to cell with the inmate). Id., at 9-10. Plaintiff alleges that inmates are housed according to their affiliation, thus, a Northern Mexican is not housed with a Southern Mexican; therefore, he believes the planned cell assignment amounted to an Eighth Amendment violation for failure to protect. Id.
On October 4, 2005,*fn4 it was determined that plaintiff could be released to yard II; nevertheless, he was forced either to remain on yard I or go back to Ad Seg. AC, p. 10-11. From mid-October 2005, until February 2, 2006, plaintiff repeatedly spoke with defendant Williams asking her to rehouse him with another cellmate or send him back to yard II, which requests Williams ignored. AC, p. 11. In mid-January of 2006, when defendant Williams was asked by non-defendant Associate Warden Crawford, after plaintiff had spoken to her (Crawford) about his situation, Williams yelled at plaintiff: "What are you doing going over my head to the A.W. about this bullshit?" Id., at 11-12. When in response to her question, plaintiff gave defendant Williams the name of the cellmate about whom he was concerned, Duran T-63911, Williams became more upset, yelling in a voice other inmates could overhear: "Get out of here and quit dropping peoples[']names trying to fuck up their program." Id., at 12.
On February 2, 2006, he approached defendant Williams again, asking that inmates be compacted to free up a cell, where there were four cells with one inmate only in each, so that he could be housed with someone else also designated "other." AC, p. 12. Defendant Williams became upset again, yelling: "So now you want to fuck the blacks out of their cell. Just for you." Id. Plaintiff noticed a number of black inmates looking at him at that point, and, later that day, Inmate Socorro, E-99222, approached him about what he had overheard defendant Williams saying about plaintiff trying to have black inmates moved from their cells, knocked plaintiff down and ran off. Id., at 12-13. As plaintiff waited for an unlock, he was again approached by Inmate Socorro, who had two other inmates with him. Id., at 13. Plaintiff was attacked by the inmates, or at least by Inmate Socorro, and C/O*fn5 Henderson (not a defendant) saw what was happening and put the yard down. Id. Plaintiff was taken to medical in handcuffs; he was reported to have an elbow scrape. Id.
Plaintiff was placed in a 4x4x6 cage and, a few minutes later, escorted to be interviewed by non-defendant Lieutenant (Lt.) Herrera. AC, p. 13. After defendant Williams came in and whispered to Herrera, Herrera told plaintiff he had intended to release him back to the yard, but because of defendant Williams' information, plaintiff would be placed in Ad Seg for his safety. Id. Plaintiff was told by Lt. Herrera on February 8, ...