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Whittier Buchanan, Cdcr #K-02554 v. E. Garza; L. Fuga; R. Baker

March 27, 2012

WHITTIER BUCHANAN, CDCR #K-02554 PLAINTIFF,
v.
E. GARZA; L. FUGA; R. BAKER; R. LIMON; A. SALCEDO; D. HODGE,
DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' PARTIAL CROSS-MOTION FOR SUMMARY JUDGMENT [ECF Nos. 103, 106]

I.

PROCEDURAL BACKGROUND

Whittier Buchanan ("Plaintiff"), a state prisoner currently incarcerated at Kern Valley State Prison located in Delano, California, proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. Defendants initially moved to dismiss Plaintiff's First Amended Complaint in 2010. The Court issued a ruling in which the Court dismissed all claims against Defendants Verkouteren, Garcia, Pederson and Contreras without leave to amend. See July 27, 2010 Order at 11. The Court also granted Defendants' Motion to Dismiss Plaintiff's access to courts claim, conspiracy claim and all state law claims. Id. Defendants Sterling and Grannis brought a second Motion to Dismiss as they had been served with Plaintiff's First Amended Complaint after the initial Defendants had moved to dismiss the claims against them. On October 15, 2010, the Court dismissed all claims against Defendants Sterling and Grannis. See Oct. 15, 2010 Order at 12. Accordingly, the only remaining Defendants in this action are Garza, Fuga, Baker, Limon, Salcedo and Hodge. The remaining claims are Plaintiff's Eighth Amendment excessive force, Eighth Amendment deliberate indifference to serious medical needs and retaliation claims.

Plaintiff filed a Motion for Summary Judgment as to all claims on August 9, 2011 [ECF No. 103]. Defendants Garza, Fuga, Baker, Limon and Salcedo filed a Cross-Motion for Partial Summary Judgment as to Plaintiff's Eighth Amendment deliberate indifference and retaliation claims on September 30, 2011 [ECF No. 106]. The Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [ECF No. 112]. All parties have filed an Opposition to the respective Motions [ECF Nos. 108, 114]. Neither party has filed a Reply to either Opposition.

II.

FACTUAL BACKGROUND*fn1

In his First Amended Complaint, Plaintiff alleges that the events that gave rise to this action occurred while he was incarcerated at the Richard J. Donovan Correctional Facility ("RJD") from February 7, 2007, to October 23, 2007. (See FAC at 1.) In 2007, Plaintiff had a pending lawsuit against the California Substance Abuse Treatment Facility ("CSATF") for which he requested that Defendant Sterling, the Legal Technician Assistant, provide him with copies of legal documents. (Id. at 4.) Plaintiff claims that Defendant Sterling's "lack of legal assistance" caused Plaintiff to "miss his Court deadline." (Id.) Because he claims that Sterling's actions "hindered his efforts to process his legal claims," Plaintiff filed an administrative grievance against Sterling. (Id.)

Plaintiff claims that when Sterling became aware of Plaintiff's grievances, she began to lose or misplace Plaintiff's legal documents and refused him access to the prison law library. (Id.) As a result, Plaintiff's lawsuit was dismissed. (Id.)

Plaintiff further claims that Defendants Salcedo, Baker and Limon "were not supplying Plaintiff with indigent envelopes," so he filed an administrative grievance against Salcedo, Baker and Limon. (Id.) Plaintiff informed Salcedo that he had pending litigation, which is why he needed the envelopes, and requested her assistance to process his legal mail. (Id.) Because Salcedo refused to do so, Plaintiff filed another administrative grievance against Salcedo. (Id.) Plaintiff alleges that "in retaliation, Defendant Salcedo conspired with Defendants' Baker and Limon" to not "pick up/process Plaintiff's legal mail to the courts." (Id.)

On May 30, 2007, Plaintiff was standing outside of the "program office" when Defendant Garza emerged from the office and "gave Plaintiff a direct order to 'stop filing 602's!'" When Plaintiff attempted to explain why he needed to file the grievances, Garza "abruptly cut Plaintiff off yelling '[racial expletive], you don't have any rights, you are a criminal, criminals don't have rights.'" (Id.) Garza continued to use racially derogatory language towards him. (Id.) Plaintiff claims Defendant Garza "yanked his [stick] from his waistbelt" and ordered Plaintiff to "get down." (Id.) Plaintiff complied by laying down on his stomach at which time Garza ordered Defendant Fuga and "Jane Doe" to "cuff him." (Id.) Plaintiff informed Defendants Fuga and Doe as they "began to jerk Plaintiff's arms behind his back" that he had a medical chrono indicating that Plaintiff had a disability that provided for him to be handcuffed in the front and not behind his back due to a herniated disk. (Id.) Defendants Fuga and Doe ignored this information and were "kneeing Plaintiff roughly in his back, neck and the lower parts" of his body. (Id.) Plaintiff claims that a number of medical care employees and correctional officers observed this altercation but failed to protect him from injury.

Plaintiff cried out "you're hurting me." (Id. at 6.) "Upon hearing this, Defendant Garza gave Defendants Jane Doe and Fuga a direct order to 'hurt him.'" (Id.) Plaintiff claims that Fuga and Doe "became even more malicious and sadistic" by "jerk[ing] twice on Plaintiff's left arm" which resulted in an "audible popping sound." (Id.) Plaintiff claims Defendant Garza continued to yell racial expletives towards him and ordered Fuga and Doe to stand Plaintiff up. (Id.) As Plaintiff was crying, he claims that Defendant Garza "saw that he had actually 'silenced' Plaintiff" and ordered Fuga to take Plaintiff back to his cell. (Id.) Plaintiff asked Fuga to take him to the infirmary as he was in "extreme pain" but Fuga refused.

On August 16, 2007, Plaintiff claims that he was asked by Defendant Hodge to "snitch" on another inmate. (Id.) When Plaintiff refused, Hodge took Plaintiff's prescription sunglasses. (Id.) Because Plaintiff continued to refuse to be a "snitch," and due to the fact that Plaintiff filed a grievance against him, Hodge began acts of retaliation against Plaintiff. (Id.) Plaintiff claims that Hodge would take personal property from Plaintiff and give them to other inmates. (Id. at 7.) Plaintiff alleges that Hodge would refuse to allow Plaintiff to attend church services or sing in the prison's gospel choir. (Id.)

III.

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment -- Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as matter of law. FED. R. CIV. P. 56(a). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). The burden then shifts to the opposing party to provide admissible evidence beyond the pleadings to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986). The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Instead, the non-movant must designate which specific facts show that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989).

Cross-motions for summary judgment do not necessarily mean that there are no disputed issues of material fact, and do not necessarily permit the court to render judgment in favor of one side or the other. Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). Instead, the court must consider each motion separately to determine whether any genuine issue of material fact exists. Id. A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is thus determined by the substantive law governing the claim or defense. Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 322; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248).)

B. General Standards for § 1983 liability

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue; and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the ...


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