The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Defendants' motion for summary judgment and to strike are now before the court. This case is proceeding on plaintiff's verified,*fn1 third amended complaint, filed August 30, 2010, against defendants Her and Solorzano. Plaintiff alleges that defendants (1) used excessive force on, and failed to protect, plaintiff, in violation of the Eighth Amendment; (2) violated plaintiff's due process rights; (3) intentionally inflicted emotional distress in violation of California state law; and (4) allegedly falsified incident reports. Plaintiff argues that as a result, plaintiff sustained (1) a two large cuts to his back, requiring hundreds of stitches, causing pain and suffering; (2) excessive administration of pepper spray; and (3) serious emotional distress. As explained more fully below, the court recommends that defendants' motion for summary judgment be granted in part, and denied in part; defendants' motion to strike is denied.
II. Motion for Summary Judgment
Defendants move for summary judgment on the grounds that: (1) defendants did not use excessive force and had no intention to harm plaintiff; (2) defendants did not show deliberate indifference in their protection of plaintiff; (3) defendants did not violate plaintiff's due process rights; (4) defendants did not engage in outrageous conduct or intentionally inflict emotional distress; (5) plaintiff fails to state a claim as to the alleged false statements in the incident reports; and (6) defendants are entitled to qualified immunity.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56 is met. "The 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." Fed. R. Civ. P. 56(a).*fn2
Under summary judgment practice, the moving party 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) (quoting then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
Consequently, 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or 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 such a dispute exists. See Fed. R. Civ. P. 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, see 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, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor 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 630. 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 a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 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. See 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 586 (citation omitted).
By order filed April 24, 2009, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 9); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
B. Civil Rights Claims Standards
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed, except as otherwise noted.
1. Plaintiff is a state prisoner incarcerated at North Kern State Prison.
2. The incidents at issue here took place on March 10, 2008, while plaintiff was incarcerated at the California State Prison-Solano ("CSP-Solano").
3. Defendant H. Her was employed by the California Department of Corrections ("CDCR"), and held the position of Correctional Officer at CSP-Solano. On March 10, 2008, defendant Her was assigned to Building 8, as the second tier officer.
4. Defendant A.V. Solorzano was employed by the CDCR, and held the position of Correctional Officer at CSP-Solano. On March 10, 2008, defendant Solorzano was working in Building 8, as the floor officer.
5. Defendant Solorzano was plaintiff's immediate supervisor. 6. At about 2:00 p.m., plaintiff was released to the Building 8 day room to begin his job as a p.m. porter.
7. Upon being released to the day room, plaintiff immediately acquired two large plastic bags and began emptying trash cans in Building 8.
8. While continuing his porter duties on the second tier, plaintiff passed the cell door of inmate Jerry Sprague, and plaintiff jokingly yelled down to a group of inmates walking out of the building for yard activities.
9. Inmate Sprague was locked inside his cell, waiting for program release, and while standing at the cell door, asked plaintiff if plaintiff was talking to Sprague, and was plaintiff disrespecting him? Plaintiff said he was not disrespecting Sprague and walked away.
10. When plaintiff went downstairs, he asked inmate Terrell Woodard to walk with him to the "white" side of the day room and watch plaintiff's back while plaintiff continued picking up trash.
11. As plaintiff and inmate Woodard approached the trash can on the far side of the stairway, inmate Sprague stepped away from a crowd of white inmates. As Sprague walked toward plaintiff, Sprague said that plaintiff had called Sprague a "punk," and then Sprague began fist hitting plaintiff in the head.*fn3
12. At approximately 2:25 p.m., defendant Solorzano heard "a noise coming from the direction of cell 119." (Dkt. No. 117-1 at 82 (Rules Violation Report).)
13. At approximately 2:25 p.m., Correctional Officer Ariola, working as a control booth officer, heard yelling on the day room floor near cell 120, and saw two white inmates throwing what appeared to ...