The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION RE: GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND DENYING MOTION FOR LEAVE TO AMEND
On April 26, 2010, Magistrate Judge Louisa A. Porter entered a Report and Recommendation That Defendants' Motion for Summary Judgment Be Granted and Plaintiff's Motion for Summary Judgment be Denied ("R & R"). Plaintiff has filed Objections to the R & R and Defendants a response to the Objections.*fn1 Each Objection is addressed in turn.
The court adopts the statement of facts set forth in the R & R; and only supplements that statement with the evidence submitted by Plaintiff, consisting primarily of his own declaration.*fn2 On October 7, 2005 Plaintiff Daniels informed Defendant Alvarado of his belief that he needed a cell change because of the "likelihood of serious violence between gang member cellmate Smith" and himself. (Daniels Decl. ¶1). In the morning, Officer Harris indicated that Plaintiff could change cells. (Id. ¶2). Plaintiff started to move his personal belongings from his cell to a table in the day room. (Id. ¶3). After Plaintiff refused to return to his cell for an inmate count, Officer Roberts, a named defendant not yet served with the summons or complaint, placed him in handcuffs and he and Officers Harris and Alvarado escorted him to his cell. On the way to the cell, Officer Roberts whispered in Plaintiff's ear that if Plaintiff wanted to go to Administrative Segregation, he would "have to "EARN" it!" (Id. ¶8).
The key events in this case occurred at the entrance to Plaintiff's cell. When Plaintiff was ordered to enter the cell, Officer Alvarado observed Plaintiff "take two steps forward toward the cell and then he suddenly shot backwards out of the cell, colliding into Correctional Officer Roberts, almost pushing him over the second-tier railing." (Alvarado Decl. ¶10). Officer Roberts, an individual of five feet two inches in height, ordered Plaintiff to get on the ground. When Plaintiff, about six foot two inches tall, weighing 240 lbs, refused to get on the ground, Officer Roberts pulled Plaintiff to the ground. Officer Alvarado observed Plaintiff kicking his legs when she sat on Plaintiff's legs to prevent him from kicking and injuring Officer Roberts or herself. She declares that she did not "kick, punch or in any way use force against Daniels other than to sit on his legs." (Alvarado Decl. ¶12).
Plaintiff's declaration disputes that he pushed back against Officer Roberts when ordered to enter the cell. Plaintiff acknowledges that he refused to enter the cell and that Officer Roberts threw Plaintiff violently "down to the hard concrete floor onto [his] left shoulder, and then placed his knee on Plaintiff's neck." (Daniels. Decl. ¶8). Plaintiff disputes that he was kicking and, with respect to Officer Alvarado, declares that she did not sit on his legs but was standing on them." (Daniels Decl. ¶9).
Objection to the Defendants' Provision of Notice of the Summary Judgment Standards
In reliance upon Arreola v. Mangaong, 65 F.3d 801 (9th Cir. 1995), Plaintiff argues that only the court can provide notice of the summary judgment standard. In Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), the court overruled Arreola, holding that a summary judgment movant may provide the requisite notice. Accordingly, the court denies this objection.
Objection to the Grant of Summary Judgment in Favor of Defendants
Plaintiff's primary Objection to the R & R is that the evidence accompanying his Objections establish that Defendants applied excessive force in violation of his Eighth Amendment constitutional rights. While Defendants object to the court's consideration of the evidence not originally accompanied by Plaintiff's opposition to the motion for summary judgment, the court, in its discretion, considers such evidence and concludes that it fails to create a genuine material issue of law or fact.
The R & R sets forth the legal standards to prevail on an excessive force Eighth Amendment claim. (R & R at pp.8:9-10:12). As further discussed in the R & R, the core Eighth Amendment judicial inquiry is that set out in Whitley v. Albers, 475 U.S. 312 (1986), that is, "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The R & R also discusses in detail the factually similar case of White v. Roper, 901 F.2d 1501 (9th Cir. 1990), where the Ninth Circuit concluded that a prisoner's refusal to enter his cell created the need for force from the prison official, even if the prisoner had a reasonable fear that his cellmate would physically assault him.
In light of the factual record, the court concludes that the force applied by Defendants Alvarado and Harris constitutes a de minimus amount of force and is therefore not actionable. See e.g. Moore v. Machado, 2009 WL 4051082 (N.D. Cal. 2009) (Throwing prisoner against the wall and then twisting and bending his arm is de minimus). Whether Defendant Alvarado sat on Plaintiff's legs or stood on them, the evidence establishes that Defendant Alvarado acted reasonably and in good faith to apply reasonable force to control Plaintiff. Plaintiff has not shown that he was seriously injured when Defendant Alvarado took efforts to maintain and restore order by assisting Officer Roberts in gaining control over Plaintiff or that Defendant Alvarado acted maliciously or sadistically in holding down Plaintiff's legs.
With respect to Defendant Harris, this Defendant declares that he did not touch Plaintiff at any time during the incident. Officer Harris declares that he was standing next to Officer Roberts when he observed Plaintiff refuse to enter his cell and then push backwards into Officer Roberts. (Harris Decl. ¶9). He observed Officers Roberts and Alvarado gain control over Plaintiff and declares that he did not touch ...