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Marvin Glenn Hollis v. A. Gorby

January 30, 2012

MARVIN GLENN HOLLIS, PLAINTIFF,
v.
A. GORBY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights. The eight remaining defendants are either current or former employees of the California Department of Corrections and Rehabilitation (CDCR) at High Desert State Prison (HDSP). In orders dated November 24, 2009, and March 31, 2010, the magistrate judge previously assigned to this case found that plaintiff's complaint states claims upon which relief can be granted under the Eighth Amendment against defendants Gorby, Tovar Sr., Wright, Lowry, Crawford, McGuire, Barton and Tovar Jr.*fn1 All defendants now move for summary judgment.*fn2

I. Plaintiff's Allegations*fn3

On the morning of December 12, 2008, defendant Tovar Sr. escorted plaintiff following a meeting with staff concerning a dental issue. While being escorted, plaintiff's hand and arms were restrained with handcuffs attached to a waist chain and he wore ankle restraints. At some point, plaintiff was placed in a holding cage in the administrative segregation building, "Z Unit." The door to the cage was left open.

Shortly thereafter, defendant Tovar Sr. entered the cage and grabbed plaintiff by the waist restraints. Then, plaintiff asked Tovar Sr. to close the door to the cage. It is not clear why he made this request. In response to plaintiff's request, defendant Gorby told plaintiff to "shut his fucking mouth" and "you don't run shit around here." Plaintiff told Gorby and Tovar Sr. "I have a 1st Amendment right to freedom of speech" and again requested the Tovar Sr. and Gorby close the door to the holding cage.

At that point, Gorby "snatched" plaintiff out of the cage and violently threw him to the ground. Gorby jumped on top of plaintiff and drove his knee into plaintiff's back as Tovar Sr. held plaintiff down. Plaintiff suffered extreme pain as a result of the actions of Gorby and Tovar Sr.

While plaintiff was on the ground, Gorby told plaintiff he is "tired of [plaintiff's] shit." The control officer in "Z Unit" then activated his alarm causing several correctional officers to respond. Eventually, plaintiff was lifted from the ground and placed back into the holding cage. After he was in the cage, plaintiff asserted he would file a complaint against the officers present. Defendant Wright indicated he did not care.

Plaintiff again requested that the door to the holding cage be closed. In response to plaintiff's request, defendants Gorby and Wright again pulled plaintiff out of the cage and threw him to the ground injuring plaintiff's right elbow. Defendants Gorby, Tovar Sr., Wright, Lowry and Crawford then "piled on" plaintiff with violent force and remained on top of plaintiff for ten minutes while plaintiff was in extreme pain. Defendants McGuire, Barton and Tovar Jr. witnessed what happened but did nothing to stop the use of force by the other defendants.

After these events, plaintiff was cleared to return to his cell by medical staff and was escorted back to his cell by defendant Lowry. During the escort, Lowry twisted plaintiff's right wrist causing pain.

Plaintiff asserts defendants did not like plaintiff because of his use of the inmate appeal process, although he fails to point to any grievances filed by him where any defendant was explicitly or implicitly targeted in the grievance.

II. Legal Standards

A. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

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 Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, ...


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