The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge
Plaintiff Moody Woodrow Tanksley brings a complaint against defendants asserting claims under 42 U.S.C. § 1983, alleging violations of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendants Roberson, Marisoal, Boccella, Grounds, Williams, Parsons, and Muniz filed a Motion for Summary Judgment. Plaintiff filed a Response in Opposition to Defendant's Motion. Defendants then filed a Reply Memorandum of Points and Authorities in Support of the Motion for Summary Judgment. For the following reasons, defendants' motion is granted.
The following factual summary is stated in the light most favorable to plaintiff, the non-moving party, and does not necessarily reflect the facts likely to be proved at trial. On September 1, 2008, plaintiff was incarcerated at Salinas Valley State Prison. Plaintiff shared cell number D5-117 with another inmate. At 10:10 am on September 1, 2008, plaintiff experienced chest pains and his cell mate issued a "man down" call. Plaintiff's Deposition on Nov. 12, 2010 ("Pl.'s Dep.") at 16-17. Prison guards, including defendant Marisoal, arrived at plaintiff's cell, where plaintiff informed the guards he was having chest pains. Id. at 18-19. The guards put waist chains around plaintiff and placed him in a wheelchair to take him to the medical clinic. Id. at 19. When plaintiff arrived at the clinic, his chest pains rendered him unable to move himself to the waiting gurney in order to be transported to the Correctional Treatment Center ("CTC") Emergency Room. Id. at 28. Plaintiff confirms that when he was in the wheelchair he was "pretty much" "dead weight." Id. at 28. Defendants Marisoal and Roberson attempted to lift plaintiff from the wheelchair and move him to the gurney. Id. at 20, 28. According to plaintiff, they did not "set [plaintiff] on the gurney, they slammed [plaintiff] on the gurney." Id. at 20. During this process, plaintiff's left ankle made contact with an oxygen tank resting at the end of the gurney and plaintiff felt "twisting on [his] foot." Id. at 29. At one point, plaintiff attributes the twisting to both defendants Roberson and Marisoal, id. at 29, but later asserts that it was defendant Marisoal and an unnamed inmate paramedic that were controlling plaintiff's left leg when it contacted the oxygen tank, id. at 36-37. Upon contact, plaintiff suffered a laceration on his left ankle. Id. at 38.*fn1 Although not mentioned in plaintiff's amended complaint, he now contends that this laceration "quickly turned into a . . . staph infection" and that he "still has an open wound and could still lose [his] foot by amputation over that laceration." Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Resp.") at 8.
After this interaction, plaintiff began threatening defendant Roberson. Pl.'s Dep. at 39-40. Defendant Roberson continued to ask whether plaintiff was having chest pains, to which plaintiff did not respond because he "was so upset [he] kept screaming and yelling." Id. at 40. When plaintiff arrived at CTC, defendant Williams was present, in addition to defendants Roberson and Marisoal. Id. at 41. An unnamed female nurse informed plaintiff that he was not having chest pains. Id. at 43. Defendant Williams escorted plaintiff to a "holding cage," where he was "stripped down" to his boxers, and given a psychological exam. Id. at 41-43, 46. Plaintiff attempted to explain to the psychiatrist that he "was physically abused by Captain Roberson and this crew." Id. at 49. At that point, the chest pains had abated, but plaintiff was suffering from the pain in his ankle. Id. at 49. Plaintiff was placed in an administrative segregation unit. Plaintiff agrees that none of the defendants punched, kicked, or hit him. Id. at 51-52.
Plaintiff describes defendant Marisoal as around five feet, five inches in height, with a medium build, and defendant Roberson as around five feet, ten inches in height, with a medium build. Id. at 24. Plaintiff is five feet, eight inches tall. Id. at 24. Defendants assert plaintiff weighed around 260 pounds on September 1, 2008, Defendants' Motion for Summary Judgment ("Def.'s Mot.") at 10, but plaintiff disputes that assertion, Pl.'s Resp. at 6. During his deposition on November 12, 2010, plaintiff asserted that he currently weighted 308 pounds, and that he had gained more than forty pounds since the date of the incident. Pl.'s Dep. at 32. STANDARDS
A party is entitled to summary judgment as a matter of law if "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). The party requesting summary judgment initially carries the burden of proving the absence of material fact. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the non-moving party bears the burden of proof at trial, the moving party must only prove that there is an absence of evidence supporting the non-moving party's case, at which point the burden shifts to the non-moving party to put forth specific facts demonstrating the existence of a genuine issue for trial. Id.
Although the court draws all justifiable inferences in favor of the non-moving party, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968)).
Plaintiff brings a federal claim pursuant to 42 U.S.C. § 1983, which creates liability for a person acting under color of law who deprives another of a right guaranteed by the Constitution or federal law. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To prove his case under § 1983, plaintiff must prove that (1) defendants acted "under color of state law," and (2) defendants deprived plaintiff of a federal right. Id. (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). Plaintiff alleges the deprivation of his right to equal protection under the Fifth and Fourteenth Amendments, and the deprivation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Pl.'s Resp. at 2. Defendant Marisoal claims that he is entitled to summary judgment because he has qualified immunity for his actions.*fn2 Defendants Roberson, Boccella, Grounds, Williams, Parsons, and Muniz claim they are entitled to summary judgment because there is no casual connection between their actions and the alleged use of force. Qualified Immunity
Qualified immunity protects government officials from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As such, it protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). A court evaluating a claim of qualified immunity must answer two questions: (1) Whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right; (2) Whether the right at issue was clearly established at the time of the misconduct. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815-16 (2009); Saucier v. Katz, 533 U.S. 194 (2001), overruled by Pearson, 555 U.S. 223. Because the right to be free from excessive force by prison officials is clearly established,*fn3 the dispositive question is whether the facts, taken in the light most favorable to plaintiff, show that defendants Marisoal or Roberson violated plaintiff's Constitutional rights under either the Fifth, Eighth, or Fourteenth Amendments.
Fifth and Fourteenth Amendments - Equal Protection
Plaintiff alleges a violation of his right to equal protection under the Fifth and Fourteenth Amendments. The Fifth Amendment applies only to federal actors. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) ("The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government-not to those of state or local governments."). Because plaintiff does not allege that any defendants are federal actors, he has failed to state a claim alleging a violation of the Fifth Amendment.
The Fourteenth Amendment's Equal Protection Clause requires that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (same). Plaintiff here has not alleged that he was a member of any protected class. Additionally, plaintiff is not permitted to create a class simply by claiming that all persons not injured received better treatment than he did. Thornton, 425 F.3d at 1167 ("An equal protection claim will not lie by conflating all persons not injured into a preferred ...