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November 29, 2010


The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge



BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 20), Memorandum in Support (ECF 20-1) and supporting declarations and exhibits. Pursuant to Local Rule 230, the Motion was submitted without oral argument. Plaintiff Alvin E. Brozek ("Brozek") has failed to respond to the Motion.

I. Introduction - Factual Background On September 1, 2006, Plaintiff, Alvin Brozek ("Brozek") was involved in a fight and assault in the administrative segregation yard at Mule Creek State Prison. Corrections officers, including Defendant Sergeant Rodriguez ("Rodriguez") responded to the altercation based on an officer's personal alarm being activated. Rodriguez observed Brozek and another inmate, Garcia, attacking a third-inmate, Iverson. (ECF No. 20-7). Rodriguez gave verbal warnings to the inmates to stop fighting and get down on the ground. (ECF No. 20-2). Another responding officer attempted the use of pepper spray to disburse the fight. Id. Other officers gave verbal orders to stop fighting and fired their 40 millimeter multi-launchers. Id. Rodriguez also had a 40 mm multi-launcher, with 40 mm exact impact rounds. An impact round is a lightweight projectile consisting of a plastic body and a foam nose. (ECF No. 20-7). It is commonly used for suppressing riots, fights, and escape attempts where non-lethal force is desired to gain compliance. Id. The optimal range is 10 to 75 feet. Id.

Rodriguez gave verbal orders for the inmates to stop fighting and get down on the ground. (ECF No. 20-7). The inmates did not obey the orders and Rodriguez observed Brozek continue to punch and kick Iverson who had fallen to the ground. Id. Rodriguez yelled once more for Brozek to get down, and when he did not, Rodriguez fired the multi-launcher which struck Brozek in the face. Rodriguez avers that it was not his intention to hit Brozek in the face. Id. In training, officers are taught that the target zone is from the waist down, excluding the groin area. (ECF No. 20-7, ¶ 3). Rodriguez claims he aimed at Brozek's waist, but that Brozek made a rapid movement in his effort to continue to attack Iverson. Rodriguez describes it as follows: "In his attempt to strike Iverson, who was on the ground, the standing Brozek bent over at the waist, placing his head approximately where his waist had been immediately before. As he did so, the exact impact round connected with Brozek's left facial area." (ECF No. 20-7, ¶ 6). Brozek was struck in the face by one of the projectiles launched from the 40 mm multi-launcher that was fired by Rodriguez.

Brozek claims that shooting him in the face constituted excessive force, or in the words of the Complaint, was "not the right amount of force" (ECF No. 1, p. 5). Brozek contends that after his injury he did not receive proper medical attention, that his treatment was delayed, and he did not receive proper pain medication. (ECF No. 1). Brozek contends that these actions by Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment due process rights.

II. Procedural History

Plaintiff's Complaint (ECF No. 1) named over twenty individuals as defendants. In fulfilling its screening obligations pursuant to 28 U.S.C. § 1915A(a), this court dismissed the claims against all but five defendants--Rodriguez, Hawkins, Akintola, Galloway, and Smith. (See ECF No. 9). Subsequently, Plaintiff stipulated to the dismissal of his claims against Defendants Smith and Hawkins. (See ECF No. 17 and 18). The remaining three Defendants, Rodriguez, Akintola, and Galloway (herein "Defendants") filed a Motion for Summary Judgment on August 24, 2010. Plaintiff has failed to file a response to the Motion.

III. Rand Notice

The United States Court of Appeals for the Ninth Circuit, sitting en banc in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), reaffirmed its requirement that pro se prisoner litigants receive notice of the requirements of the summary judgment rule, the obligations imposed in responding to summary judgment, and the effect of failing to successfully oppose summary judgment--that the case will be over and there will be no trial.

In its Order directing service of the plausible claims against Rodriguez, Hawkins, Akintola, Galloway, and Smith this court advised Plaintiff of the import of dispositive motions. (ECF No. 11). Paragraph 7 of the court's Order begins "NOTICE -WARNING" and informs Plaintiff in plain ordinary language that: "The Court must grant a summary judgment motion filed under Federal Rule of Civil Procedure 56 when there is no genuine issue of material fact and the moving party is entitled to judgment as matter of law. This means the Court will find in favor of the moving party if there is no real dispute about any fact that affects the result of the case and if the moving party is entitled to judgment as a matter of law. This will end the case." (ECF No. 11 p. 3-4). Plaintiff was further advised that if he failed to respond, Defendants' evidence may be taken as true and "final judgment may be entered without a full trial." (ECF No. 11 p. 5). Plaintiff was also directed to Fed.R.Civ.P. 56 and Local Rule 260. The court also directed that the Clerk's Office provide Plaintiff a copy of the Local Rules.

The Rand court held that the required notice may be given by the moving party. In moving for summary judgment, the Defendants herein reminded Plaintiff that if the Motion was granted, it will end the case. (ECF No. 20). Defendants' Motion also informed Plaintiff of what is required to respond to a motion for summary judgment, and again referenced Fed.R.Civ.P. 56 and Local Rule 260. (ECF No. 20).

The court's notice (ECF No. 11) and the notice provided in Defendants' Motion (ECF No. 20) meet the fair ...

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