The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On October 4, 2011, the magistrate judge filed findings and recommendations herein which were served on the parties and which contained notice that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff filed objections on October 18, 2011, and they were considered by the undersigned.
This court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the proposed Findings and Recommendations in full. The court also notes that on October 17, 2011, after the Findings and Recommendations were filed, the Ninth Circuit issued a consolidated en banc opinion in Mattos v. Agarano and Brooks v. City of Seattle, --- F.3d ----, 2011 WL 4908374 (9th Cir. Oct. 17, 2011), both of which were cited on page 31 of the Findings and Recommendations. Dckt. No. 50 at 31. None of the parties have filed objections to the Findings and Recommendations based on that en banc opinion.
Nonetheless, the court notes that in that opinion, an en banc panel of the Ninth Circuit held that the defendants in both actions (Mattos and Brooks) were entitled to qualified immunity, even though their use of tasers amounted to excessive force, because the law regarding use of tasers was not sufficiently clear at the time of the incidents (in 2006 and 2004, respectively) to render the alleged violations clearly established. 2011 WL 4908374, at *12, *16. The en banc panel specifically found that the violations were not "so obvious" that the court could "define clearly established at a high level of generality" such that "Graham [v. Connor, 490 U.S. 386 (1989)] alone render[ed] the unconstitutionality of [the] tasing clearly established." 2011 WL 4908374, at *12, *16 (citing Ashcroft v. al-Kidd, --- U.S. ----, 131 S. Ct. 2074, 2083 (2011)). Unlike the tasings in Mattos (in which the individual tased, although not posing a threat to officer safety, unintentionally was in the way when the officer attempted to gain control over a potentially dangerous domestic violence dispute) and Brooks (in which the individual tased, although pregnant, did not dispute that she was resisting arrest at the time she was tased), when plaintiff's version of the events are taken as true for purposes of summary judgment, the court finds that it was sufficiently clear at the time of the incident (in 2008), based on Graham, that Deputy Culp's gratuitous multiple uses of the taser violated Damion's Fourth Amendment right to be free from excessive force such that qualified immunity for Culp at the summary judgment stage is improper.*fn1
The court also notes that although plaintiff was originally proceeding pro se, on October 12, 2011, attorney Ellen Dove filed a notice of substitution as plaintiff's counsel. Dckt. No. 51. Because plaintiff is now represented by counsel, the referral to the magistrate judge will be withdrawn and the case will be referred back to the undersigned.
Accordingly, IT IS ORDERED that:
1. The proposed Findings and Recommendations filed October 4, 2011, are ADOPTED.
2. Defendants' motion for summary judgment, Dckt. No. 34, is granted in part and denied in part, as follows:
a. All defendants are granted summary judgment on plaintiff's first claim to the extent it is based on a violation of Damion's Fifth Amendment rights;
b. All defendants are granted summary judgment on plaintiff's first claim to the extent it is based on a violation of Damion's Fourteenth Amendment rights;
c. Deputy Bustamante and Deputy Culp are denied summary judgment on plaintiff's first claim to the extent it is based on a violation of Damion's Fourth Amendment rights, but Deputy ...