The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 46) and
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED (Doc. 78) and
ORDER REQUIRING PLAINTIFF TO SUBMIT SUPPLEMENTAL OPPOSITION WITHIN 30 DAYS OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Barry Louis Lamon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. On September 7, 2010, Defendants filed a motion for summary judgment. (Doc. #46.) Plaintiff filed an opposition on January 4, 2011. (Docs. #68-71.) Defendants filed a reply on January 7, 2011. (Doc. #72.) For the reasons set forth below, the Court recommends that Defendants' motion for summary judgment be denied with respect to Plaintiff's excessive force claims against Defendants Baer, Valdez, Bueno, Lee, Ponce, or Purvis and Defendants' claim to qualified immunity be denied with respect to Defendants Adams, Junious, and Callow.
Plaintiff argued that he was unable to submit certain evidence in support of his opposition. On January 19, 2011, Plaintiff filed a motion requesting an "order of protection" requiring prison officials to provide Plaintiff with photocopies of 233 pages of documents. The Court will construe Plaintiff's request as a motion for preliminary injunction and recommend that Plaintiff's request for preliminary injunctive relief be denied. However, the Court will provide Plaintiff an opportunity to submit a supplemental opposition and will defer ruling on the remaining arguments raised in Defendants' motion for summary judgment until after Plaintiff submits a supplemental opposition.
This action proceeds on Plaintiff's February 2, 2009, complaint. (Doc. #1.) Plaintiff alleges that prison staff retaliated against him for filing inmate grievances and staff complaints. (Compl. ¶26.) Plaintiff alleges that supervisory Defendants (Adams, Junious, Da Viaga, and Callow) "failed to take adequate remedial action to stop the . . . acts of retaliation from occurring and instead created policies for review of inmate grievances that implicitly condoned, authorized, and perpetuated [the] retaliation." (Compl. ¶ 26.) Defendants Adams, Junious, Da Viaga, and Callow "buried" allegations of staff abuse and misconduct under the doctrine of confidentiality. (Compl. ¶ 27.)
Plaintiff made numerous written and verbal complaints about prison staff retaliating against him by tainting his meals with chemicals. (Compl. ¶ 28.) Plaintiff's complaints would be treated as staff complaints and the results of purported investigations were kept confidential. (Compl. ¶ 29.) Ultimately, the food tainting did not cease, and in fact amplified after Plaintiff filed grievances. (Compl. ¶ 29.)
On May 2, 2008, Plaintiff was ordered to appear in federal court to give testimony in one of his civil lawsuits against prison officials at CSP-Corcoran. (Compl. ¶ 30.) Plaintiff alleges that prison staff in the kitchen amplified their retaliatory practices because he was testifying in court. (Compl. ¶ 31.) Plaintiff's tainted meals were delivered by Defendants Lee, Ponce, and Purvis. (Compl. ¶ 31.) Plaintiff complained to Defendants Lee, Ponce, and Purvis, but was told to write a grievance against the staff that made his meals. (Compl. ¶ 32.) Plaintiff alleges that any complaints he would have made would have been buried pursuant to the "shadow-policy" perpetuated by Defendants Adams, Junious, Da Viaga, and Callow to cover-up Plaintiff's complaints under the guise of "confidentiality". (Compl. ¶ 33.)
On June 7, 2008, Plaintiff's meal was delivered by Defendants Lee, Ponce, and Purious in an inedible condition. (Compl. ¶ 34.) Plaintiff's demand that Defendants Lee, Ponce, and Purious inspect the meal was refused. (Compl. ¶ 34.) Later in the evening, Plaintiff refused to accept his medication from the nurse as a gimmick to force her to contact Defendants Valdez and Buenos. (Compl. ¶ 35.) Defendants Valdez, Buenos, and Baer arrived and informed Plaintiff that they were aware that Plaintiff was only refusing medication as a means of obtaining their attention. (Compl. ¶ 36.) Plaintiff was ordered to cuff up and take his medications. (Compl. ¶ 36.) Plaintiff submitted to handcuffs. (Compl. ¶ 37.) Plaintiff learned that he was going to be escorted to the Acute Care Hospital to receive his drugs intravenously which Plaintiff believed to be a trick to move Plaintiff to another cell. (Compl. ¶ 37-38.) Plaintiff protested by laying on the ground in a prone position and told Defendants that he wanted to take the drugs orally. (Compl. ¶ 38.) Defendants Baer, Valdez, and Buenos ordered Plaintiff to go to the hospital. (Compl. ¶ 39.) Plaintiff refused and Defendant Valdez ordered Plaintiff to stand and sit in a wheelchair. (Compl. ¶ 40.) When Plaintiff refused again, Defendants Valdez, Lee, Ponce, Purvis, Baer and Buenos piled on Plaintiff's back, pummeled him and pepper sprayed him. (Compl. ¶ 40-41.) Plaintiff complains that the use of force was unnecessary because the Defendants could have simply lifted Plaintiff and placed him into an electric cart for transportation to the hospital. (Compl. ¶ 42.)
After Plaintiff was taken to the hospital and provided his medications, Defendants Baer, Valdez, and Buenos ordered Defendants Lee, Ponce, and Purvis to place Plaintiff in building 4A4L. (Compl. ¶ 44.) Plaintiff alleges that he was placed in building 4A4L because he had gang enemies there and Defendants intentionally endangered Plaintiff's safety. (Compl. ¶ 46-47.)
After Plaintiff was moved to his new cell, he was denied all access to his personal property. (Compl. ¶ 48.) Plaintiff's property was returned after four days, but he was still missing some legal materials, medical records, toiletries, and stamps. (Compl. ¶ 48.) Plaintiff complained about his stolen property but claims that his complaints were suppressed and covered-up. (Compl. ¶ 49.) Plaintiff alleges that Defendant Callow falsified facts regarding the investigation of his complaints. (Compl. ¶ 49-50.)
Plaintiff finally claims that Defendants Baer, Valdez, and Buenos ordered that Plaintiff be placed on strip-cell status. (Compl. ¶ 51.) Plaintiff was placed in a cell with nothing but a pair of shorts, forced to sleep on a concrete slab, and denied toiletries for three days. (Compl. ¶ 51.) Plaintiff alleges that his placement on strip-cell status was for retaliatory purposes. (Compl. ¶ 51-52.)
On June 17, 2009, the Court screened Plaintiff's complaint. (Doc. #7.) The Court found that Plaintiff's complaint stated some cognizable claims. The Court found that Plaintiff stated cognizable claims against Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis for the use of excessive force and deliberate indifference to a threat to Plaintiff's safety in violation of the Eighth Amendment, and retaliation against Plaintiff's exercise of his First Amendment rights. The Court also found that Plaintiff stated cognizable claims against Defendants Adams, Junious, Da Viaga, and Callow for deliberate indifference to a threat to Plaintiff's safety in violation of the Eighth Amendment. All other federal claims raised in Plaintiff's complaint were dismissed on July 31, 2009, after Plaintiff notified the Court that he wished to proceed only on the claims found to be cognizable in the June 17, 2009 screening order.*fn1
B. Defendants' Motion for Summary Judgment
Defendants contend that they are entitled to judgment on four separate grounds. First, Defendants argue that Plaintiff failed to timely respond to Defendants' requests for admissions and the failure to respond operates as an automatic admission of the facts contained in the requests pursuant to Federal Rule of Civil Procedure 36(a)(3). Defendants argue that if the facts are deemed admitted, they are entitled to judgment.
Second, Defendants contend that Plaintiff failed to comply with the Government Claims Act with respect to his state law claims. Defendants argue that they are entitled to dismissal with respect to the state law claims because Plaintiff failed to plead compliance with the California Government Claims Act.
Third, Defendants contend that they are entitled to judgment because Plaintiff has no evidence that Defendants Baer, Valdez, Bueno, Lee, Ponce, or Purvis used excessive force against Plaintiff or retaliated against Plaintiff, or that Defendants Adams, Junious, or Callow were deliberately indifferent toward a threat to Plaintiff's safety or promulgated a policy directing subordinates to retaliate against Plaintiff.
Finally, Defendants contend that Defendants Adams, Junious, and Callow are entitled to qualified immunity.
II. Summary Judgment Legal Standards
Under Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(a). "[A] party seeking summary judgment 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).
Entry of summary judgment is appropriate "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." Id. at 322. "A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.
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. 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 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. Federal Rule of Civil Procedure 56(c); 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, 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, Anderson, 477 U.S. at 248 (1986) ("summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
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. Federal Rule of Civil Procedure 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). 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. 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).
A. Defendants' Requests for Admissions
Defendants argue that Plaintiff's failure to respond to requests for admissions results in automatic admission of the matters contained therein. Defendants contend that Plaintiff never responded to requests for admission propounded by Adams, Junious, Callow, Lee, Ponce, Purvis, Baer, Bueno, and Valdez. Defendants argue that the matters that should be deemed admitted establish that Defendants did not violate any of Plaintiff's constitutional rights.
Plaintiff opposition states:
Defendants falsely claim that Plaintiff failed to provide them with responses to Defendant Adams' request for admissions. This is a baseless and perjurious[sic] charge. Like so much more of the Defendant's claims. I filed the responses at mention eons ago. Just to prove the point with resounding finality, I am sending the Court the "original document" so that the Court can take notice of age and wear on the thing.
Interestingly enough, the Defendants have not mentioned this matter during any of the latest discovery disputes. That goes to show they are perjuring themselves in a hail-mary effort to squeak their clients out of this iron-clad civil suit.
Furthermore, your honor, please look at all of the stuff they now say they didn't receive. Remember, I sent a copy for each Defendant of each response. There is no reasonable explanation they can give for not having noticed something this expansive sooner. This is a sham. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. and/cross-motion for Summ. J. 4:3-17, ECF No. 70.) The Court has not received Plaintiff's responses to Defendants' requests for admission and has not received any documentary evidence to support Plaintiff's claim that he responded to Defendants' requests for admission.
Although Plaintiff has provided scant evidence in support of his contention that he filed timely responses to Defendants' requests, the Court will not award judgment in Defendants' favor based ...