The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are the Petition for a Writ of Habeas Ad Testificandum (ECF No. 144), the Motion for Order Subpoenas for Plaintiff's Witness (ECF No. 145), the Motion for Attendance of Incarcerated Witness (ECF No. 146), and the Motion for Status Update (ECF No. 168) filed by Plaintiff Filipe Noe Garcia; and the Motion for Summary Judgment (ECF No. 152) filed by Defendants.
On January 1, 2006, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing his Complaint. (ECF No. 1). On May 30, 2006, Plaintiff filed his Second Amended Complaint which added Defendants J. MacLeod, Deputy Lonsdale, M Massey, and B Neagles. (ECF No. 29). On July 13, 2007, Plaintiff filed his Third Amended Complaint ("TAC") which is the operative pleading in this case. (ECF No. 90). On September 20, 2007, the Court dismissed the case against Defendant Deputy Lonsdale. (ECF No. 101). On March 3, 2008, the Court dismissed Plaintiff's prayer for injunctive relief and struck portions of the TAC. (ECF No. 113).
On June 1, 2009, the Court held a pretrial conference. (ECF No. 133). Following the pretrial conference, the Court reopened discovery.
On February 2, 2010, the Court held a status hearing. (ECF No. 135). Following the February 2, 2010 status conference, the Court issued an order requiring Plaintiff to file a Second Amended Proposed Pretrial Order which listed each claim which: "(1) Plaintiff believes he alleged in the complaint; (2) have not been dismissed by this Court; and (3) Plaintiff intends to proceed to trial on." (ECF No. 142 at 1). The Court also ordered Plaintiff to file a Writ of Habeas Corpus Ad Testificandum. Id.
On March 17, 2010, Plaintiff filed a Petition for a Writ of Habeas Ad Testificandum (ECF No. 144); a Motion for Order Subpoenas for Plaintiff's Witness (ECF No. 145); and a Motion for Attendance of Incarcerated Witness (ECF No. 146).
On May 6, 2010, the Court held a status conference during which the Court ordered Defendants to file any motion to dismiss or motion for summary judgment on or before June 11, 2010. (ECF No. 149). On June 4, 2010, Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction stating that when he was moved to administrative segregation, Defendants filed to move a "box of legal property that contains all the legal documents, evidence, [and] audio evidence germane to this case...." (ECF No. 150-1 at 2) (emphasis omitted).
On June 10, 2010, Defendants filed a Motion for Summary Judgment. (ECF No. 152). On July 2, 2010, Plaintiff filed an Opposition to the Motion for Summary Judgment. (ECF No. 157).
On July 15, 2010, and on July 21, 2010, Defendants filed status reports and on August 5, 2010, Plaintiff filed a status report regarding the return of legal documents and evidentiary materials to Plaintiff. (ECF Nos. 158, 159, 161).
On August 16, 2010, this Court issued an Order denying Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction as moot and setting a date for Plaintiff to file any additional opposition to the Motion for Summary Judgment. (ECF No. 163 at 7). On that same day the Court issued a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)(en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) notifying Plaintiff that he "must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents...that contradict the facts shown in the defendants' declaration and documents and show that there is a genuine issue of material fact for trial." (ECF No. 164 at 2).
On September 2, 2010, Plaintiff filed an Opposition to the Motion for Summary Judgment along with Exhibits A-F, G1-G3, and H. (ECF No. 165). On October 4, 2010, Defendants filed a Reply. (ECF No. 167).
On January 28, 2011, Plaintiff filed a Motion for Status Update (ECF No. 168).
I. Defendants' Motion for Summary Judgment
Plaintiff's verified Third Amended Complaint ("TAC") asserts the follows claims:
(1) cruel and unusual punishment in violation of the Eighth Amendment due to use of excessive force against James Grimm ("Grimm"), Bruce Hightower, ("Hightower"), Aaron Rhinelander ("Rhinelander"), Andrew Setter ("Setter"), James Swiney ("Swiney"), and Jacob MacLeod ("MacLeod"); (2) deliberate indifference to medical needs against Grimm, Hightower, Rhinelander, Setter, Swiney, MacLeod, Gonzalez ("Gonzalez"), M. Massey ("Massey"), B. Neagles Cartier ("Neagles"), Grijalva ("Grijalva"), and Dr. Elleen Gabel ("Dr. Gabel"); (3) intentional assault and battery against Grimm, Hightower, Rhineland, Setter, Swiney, and MacLeod; (4) violation of the due process clause under the sixth and fourteenth amendments against Grimm; (5) cruel and unusual punishment in violation of the Eighth Amendment due to deliberate indifference to Plaintiff's basic human needs against Grimm; and (6) conspiracy against Grimm, Hightower, Rhinelander, Setter, Swiney, MacLeod, Gonzalez, Massey, Neagles, Grijalva, and Dr. Gabel. (ECF No. 90 at 25-28).
Defendants seeks summary judgment on the following claims: (1) the second claim regarding deliberate indifference to medical needs against Grimm, Hightower, Rhinelander, Setter, Swiney, MacLeod, Massey, Neagles, and Grijalva; (2) the third claim regarding intentional assault against Grimm, Hightower, Rhineland, Setter, Swiney, and MacLeod; (3) the fourth claim regarding violation of the due process clause under the sixth and fourteenth amendments against Grimm; and (4) the sixth claim regarding conspiracy against Grimm, Hightower, Rhinelander, Setter, Swiney, MacLeod, Massey, Neagles and Grijalva. (ECF No. 152-1 at 9).
Plaintiff contends that summary judgment should not be granted as to any claim because there are genuine issues of material fact.
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (quotation omitted). "Once the moving party comes forward with sufficient evidence, the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense." C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation omitted).
"In ruling on a motion for summary judgment, the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotation omitted); see also DiRuzza v. County of Tehama, 206 F.3d 1304, 1314 (9th Cir. 2000) ("For purposes of summary judgment . . . , we must presume the facts to be those most favorable to the non-moving party."); Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999) (The nonmoving party's declaration or sworn testimony "is to be accepted as true . . . . [The non-movant's] evidence should not be weighed against the evidence of the [movant]."). "But the non-moving party must come forward with more than the mere existence of a scintilla of evidence. Thus, '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.'" Miller, 454 F.3d at 988 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also Nelson v. Pima Cmty. College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.") (citation omitted).
When the nonmoving party is proceeding pro se, the Court has a duty to consider "all of [the non-movant's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the non-movant] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004) (citations omitted).
(1) Second Claim: Deliberate Indifference to Medical Needs Against Grimm, Hightower, Rhinelander, Setter, Swiney, ...