FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants move for an order declaring plaintiff a vexatious litigant and requiring security. Dckt. No. 78. The filing of the motion acted to stay proceedings, requiring that the court vacate the trial date, which had been set at March 15, 2011. Dckt. Nos. 76, 85. For the reasons that follow, the undersigned recommends that the motion be denied and a trial date be reset.
Plaintiff alleges that on May 18, 2005, when he was housed at High Desert State Prison ("HDSP"), defendants Wheeler and Albonico used excessive force against him in retaliation for his exercise of First Amendment rights.*fn1
According to plaintiff's complaint and deposition testimony, on the day in question HDSP was on "lockdown" and the only way to go to the law library was to be escorted by prison staff. Pl.'s Dep., Dckt. No. 80, at 28. Plaintiff needed to use the law library to meet a filing date in the U.S. Supreme Court. Id. at 17. Although he was scheduled to use the library from 12:30 p.m. to 3 p.m., no one arrived to escort him until 2:50 p.m., about 15 minutes before the library closed and five minutes "to book recall." Id. at 18, 23; Compl. at 2, ¶ 3. From the time he left his cell, plaintiff was restrained by a waist-chain to which handcuffs were attached. Pl.'s Dep. at 28, 38. Defendants Wheeler and Albonico, correctional officers, were standing in front of the library door when plaintiff arrived. Id. at 24. Plaintiff told defendants that he needed to make copies in the library and then staple them using an industrial stapler located in the Program Office, showing them a document from the U.S. Supreme Court stating that only documents that had been stapled would be accepted for filing. Id. at 17, 23; Compl. at 2, ¶¶ 4-5. Plaintiff was allowed into the library and he gave his documents to the law librarian to copy. Pl.'s Dep. at 23-24. While the copies were being made, defendants entered the library to escort prisoners back to their buildings. Compl. at 2, ¶ 4; Pl.'s Dep. at 24, 30. Plaintiff told defendant Wheeler again that he needed to use the industrial stapler, but Wheeler replied that "he was not there to take [plaintiff] to the program office but back to the building." Compl. at 2, ¶ 5; Pl.'s Dep. at 24-25.
Plaintiff asked to be escorted after the other prisoners so he could wait for his copies to be made. Compl. at 2, ¶ 6; Pl.'s Dep. at 25. Wheeler replied that he intended to take plaintiff first. Compl. at 2, ¶ 6; Pl.'s Dep. at 25, 27. Plaintiff said he would not return without his copies and asked for defendants' names. Pl.'s Dep. at 25, 27. He copied defendant Albonico's name down from the guard's name tag and told defendants that he intended to file a grievance against them for refusing to take him to the program office. Id. at 27, 32. He then walked away from defendants toward the counter where the law librarian was making copies while asking other prisoners present whether they saw defendant Wheeler refuse to help plaintiff and inviting them to be witnesses on his behalf. Id. at 29-30. Defendant Wheeler told plaintiff he had to leave right then, as plaintiff stood at the counter writing down the names of other prisoners who were present. Id. at 27, 29, 31; Compl. at 2-3, ¶ 7.
Plaintiff alleges that while he was writing down a name, defendant Wheeler rushed plaintiff from behind, causing another prisoner to jump back. Pl.'s Dep. at 27, 31; Compl. at 3, ¶ 8. Defendant Wheeler grabbed plaintiff's arm, and plaintiff, who was still restrained by the waist-chain and cuffs, went to the ground. Pl.'s Dep. at 34-35, 36; Compl. at 3, ¶ 8. Defendant Wheeler followed plaintiff to the ground, jumped on his back, pounded him in the head, punched him several times and slammed his face into the floor. Pl.'s Dep. at 35-37; Compl. at 3, ¶ 8. While this was happening, defendant Albonico grabbed plaintiff's legs, crossed them, and then jumped on them, pressing down until plaintiff's ankle snapped. Pl.'s Dep. at 35, 37-38; Compl. at 3, ¶ 8. Plaintiff was in severe pain and screamed that his leg was broken. Pl.'s Dep. at 38; Compl. at 3, ¶ 8. Sergeant Turner entered the library and jumped on the back of plaintiff's ankles. Pl.'s Dep. at 40. Defendant Albonico tried to apply ankle restraints, but plaintiff's ankles were too swollen. Id. Defendants continued to apply pressure to plaintiff's ankle despite plaintiff's screams of pain. Compl. at 8, ¶ 8. Plaintiff could not walk and was escorted from the library in a wheelchair. Pl.'s Dep. at 40. X-rays later verified that plaintiff's ankle had been fractured. Pl.'s Dep. at 39.
On the day of the incident between plaintiff and defendants,
defendants were responsible for escorting inmates from the law library
back to their assigned buildings before "institutional count" at 4
p.m., in which inmates are physically counted. Dckt. No. 78-5,
Albonico Decl. at
¶¶ 10-11; Dckt. No. 78-6, Wheeler Decl. at ¶ 10-11.*fn2
Once the institutional count has started, almost all inmate
movement must stop. Albonico Decl. at ¶ 12; Wheeler Decl. at ¶ 12. The
purpose of the count is to "facilitat[e] inmate control and
According to the defendants, when defendant Wheeler told plaintiff that Wheeler would not take him to the program office but instead would escort him back to his building, plaintiff demanded loudly to be taken to the program office and was behaving in a verbally aggressive manner. Albonico Decl. at ¶¶ 13-16; Wheeler Decl. at ¶¶ 13-16. Defendant Wheeler decided to escort plaintiff from the library before other inmates because of plaintiff's aggressive behavior, but plaintiff did not comply with his order and instead turned away from defendant Wheeler and walked toward the back of the library. Wheeler Decl. at ¶ 17; Albonico Decl. at ¶¶ 15-16. Defendant Wheeler felt that plaintiff represented a security threat despite the waist-chain and handcuffs, because plaintiff was acting erratically and throwing his shoulders and body weight around. Wheeler Decl. at ¶ 20. Defendants assert that some inmates can slip out of waist-chains and then use the chain, which still links both wrists, as a weapon. Id. at ¶ 6; Albonico Decl. at ¶ 7.
Defendants assert that Wheeler placed his hand on plaintiff's arm, and plaintiff aggressively spun back towards Wheeler. Wheeler Decl. at ¶¶ 23-24; Albonico Decl. at ¶¶ 19-20. Wheeler did not know whether plaintiff was trying to break free or preparing to hit him, and he feared for his safety. Wheeler Decl. at ¶¶ 25-26. In addition, defendants contend, plaintiff's behavior could cause a riot due to the limited number of correctional officers present, the lack of gun coverage, and the presence of several other inmates. Id. at 27.
Defendant Wheeler wrapped his arms around plaintiff's torso and took him to the ground using physical strength, forward momentum, and his body weight. Id. at ¶ 28; Albonico Decl. at ¶ 22. Plaintiff landed face- or chest-down on the ground, having turned during the altercation. Albonico Decl. at ¶ 24; Wheeler Decl. at ¶ 28. Plaintiff yelled that his leg was broken, kicked his legs, and thrashed, and to defendant Wheeler it appeared that plaintiff was trying to get other inmates involved. Wheeler Decl. at ¶¶ 29-31. Defendant Wheeler ordered plaintiff to stop resisting, but plaintiff continued to kick. Id. at ¶ 32; Albonico Decl. at ¶ 25. Defendant Albonico then placed his shins across plaintiff's legs and used his weight to hold the legs in place until leg restraints could be applied. Albonico Decl. at ¶ 26. Plaintiff continued to resist, so Sergeant Turner, who had arrived on the scene in the meantime, helped control plaintiff's legs. Id. at ¶¶ 27-28; Dckt. 78-6, Turner Decl. at ¶¶ 4-5; Wheeler Decl. at ¶ 33. In subduing plaintiff, defendants Wheeler and Albonico were unconcerned about any grievance plaintiff intended to file against them for refusing to take him to the program office. Wheeler Decl. at ¶¶ 34-36; Albonico Decl. at ¶¶ 30-32.
Plaintiff was found guilty of the serious rules violation of willfully resisting a peace officer*fn3 in connection with the incident in the law library. Dckt. No. 78-4 (Rules Violation Report and records of disciplinary hearing). At the disciplinary hearing, plaintiff testified that he walked away from defendant Wheeler to write down the names of other inmates. Id. at 5. When defendant Wheeler grabbed plaintiff's arm, plaintiff testified that he spun away and got down on the floor. Id. He testified that he "never resisted" defendant Wheeler. Id. The hearing officer also received the disciplinary report authored by defendant Wheeler, which tracks his declaration in support of the instant motion. Id. at 5-6. The library employee present at the time of the incident provided evidence that plaintiff "appeared to pull away from Officer Wheeler." Id. at 7. The hearing officer concluded that, contrary to his ...