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. On February 17, 2012, the newly-assigned district judge vacated the August 11, 2011 order, and remanded this case to the undersigned for further proceedings. Upon reconsideration, the undersigned vacates the May 4, 2011 (dkt. no. 100) and August 24, 2011 (dkt. no. 119) findings and recommendations, and issues the following findings and recommendations on defendants' motions for summary judgment.
This case is proceeding on the verified original complaint, filed April 24, 2009. Plaintiff alleges that defendant Scruggs used excessive force against plaintiff; defendant Ramirez used force and verbally threatened plaintiff during an escort; defendant McCarvel, responsible for the housing unit, was indifferent to the use of force on plaintiff, and defendant Ralls used excessive force on plaintiff. Before the court are defendants' motions for summary judgment. (Dkt Nos. 85 & 102.) As explained more fully below, the court recommends that the motions for summary judgment be granted in part and denied in part.
II. Motions for Summary Judgment
Defendants move for summary judgment on the grounds that plaintiff's action is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997). Defendants also seek summary judgment on the grounds that they acted in good faith to restore order and maintain discipline. Defendant Ramirez also moves for summary judgment on the ground that plaintiff alleges defendant Ramirez verbally threatened plaintiff, which fails to state a claim under the Eighth Amendment. Defendant McCarvel also seeks summary judgment on the ground that absent personal involvement in the alleged deprivation, McCarvel cannot be held liable.
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).*fn1
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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).
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 October 27, 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. 19); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed.*fn2
1. Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at the California State Prison-Sacramento ("CSP-SAC") on April 30, 2007.
2. Defendants Scruggs, Ramirez, and Ralls are correctional officers employed by the CDCR and were assigned to CSP-SAC on April 30, 2007. Defendant McCarvel is a correctional sergeant employed by CDCR and was assigned to CSP-SAC on April 30, 2007.
3. On April 30, 2007, defendant Scruggs*fn3 was the Facility C, Housing Unit 4, Floor Officer working the Third Watch, which is from 2:00 p.m. to 10:00 p.m. At approximately 5:40 p.m., defendant Scruggs was processing a group of inmates from Housing Unit 4 to attend an Alcoholics Anonymous ("AA") meeting outside of the building. Processing includes conducting clothed body searches that allow staff to check for weapons and/or contraband.
4. Plaintiff was one of the inmates leaving the building to attend an AA meeting. During the clothed body search of plaintiff, defendant Scruggs noticed that plaintiff was holding a cup and an unidentified object in plaintiff's right hand. Defendant Scruggs asked plaintiff what was in plaintiff's hand, and plaintiff replied that it was a "kite," or note. Defendant Scruggs asked plaintiff to show him the kite, and plaintiff allowed defendant to see the kite in his hand.
5. Defendant Scruggs told plaintiff that defendant Scruggs needed to see the note. Plaintiff did not give the note to defendant Scruggs, and told Scruggs, "I can't do that." (Dkt. No. 88 at 3, 6.)*fn4 Plaintiff concedes that once he saw Scruggs unstrap his pepper spray, plaintiff "decided to move away from Officer Scruggs." (Dkt. No. 88 at 7.)
6. What happened next is the subject of a CDCR Rules Violation Report regarding the use of force during the April 30, 2007 incident that followed. Plaintiff was charged with "Resisting Staff Resulting in the Use of Force," Log No. C07-04-101. Defendants Scruggs, Ramirez and McCarvel wrote reports describing what they observed during the incident, which were included in the CDCR 837 Crime/Incident Report Log #SAC-FAC-07-04-0321, dated April 30, 2007.*fn5
7. In his verified complaint, plaintiff states that he suffered a scratch/abrasion to his knee, "swollen soreness pain to throat," and had difficulty swallowing. (Dkt. No. 1 at 12.) The rules violation report reflects that plaintiff sustained a "reddened area on [his] face and chest area due to O.C. Pepper spray." (Dkt. No. 85-6 at 8.)
8. Plaintiff alleges that defendant Scruggs used excessive force during the use of force ...