FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The remaining defendant, Casillas, moves for summary judgment arguing that he is entitled to judgment in his favor as a matter of law. Dckt. No. 21. For the reasons that follow, the undersigned recommends that the motion be denied.
This action proceeds on the complaint filed March 8, 2010, which alleges that defendant used excessive force against plaintiff on December 16, 2008. Dckt. No. 1. The underlying facts are mostly irrelevant to the instant motion, which turns not on those facts but rather on a legal issue (whether the action is barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997)), but are provided here for context. As the parties dispute most of the facts, each party's version is provided here.
According to plaintiff, on December 16, 2008, correctional officers in the building at Mule Creek State Prison ("MCSP") where he was housed abruptly shut off the dayroom televisions, causing all the inmates to loudly protest. Dckt. No. 29, Pl.'s P. & A. ISO Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 6.*fn1 Defendant Casillas approached plaintiff, who was sitting on a bucket in his bed area. Id. While still 20 feet from plaintiff, defendant Casillas pulled out his pepper spray and rushed up on plaintiff, who was still sitting. Id. Defendant Casillas shouted expletives at plaintiff and ordered him to "shut-up, stand-up, cuff-up." Id. Plaintiff did not use expletives or lunge at or approach defendant Casillas or other staff. Id. Rather, plaintiff complied with defendant Casillas's orders, putting his hands on the wall to be cuffed. Id. at 5. Defendant Casillas then sprayed plaintiff with pepper spray "for a long time as Plaintiff passively stood with his hands on the wall . . . until Plaintiff's cloths [sic] were soaked with pepper spray." Id.
According to defendant Casillas, on December 16, 2008, he was conducting a count in plaintiff's building at MCSP when he heard plaintiff yelling obscenities at other officers who were also doing the count. Dckt. No. 21-1, Def.'s P. & A. ISO Def.'s Mot. for Summ. J. (hereinafter "Def.'s Mot. for Summ. J.") at 2. Defendant Casillas finished his count and then approached plaintiff, asking what was wrong. Id. Plaintiff yelled obscenities at defendant Casillas. Id. Defendant Casillas asked plaintiff several times to calm down, but plaintiff refused. Id. Defendant Casillas ordered plaintiff to cuff up, but plaintiff refused. Id. Then plaintiff got up from his bunk suddenly and approached defendant Casillas with his hands extended out and yelling obscenities. Id. Defendant Casillas sprayed plaintiff with pepper spray. Id. Plaintiff then consented to cuff up. Id.
The parties do not dispute that plaintiff was issued a "Rules Violation Report" ("RVR") in connection with the incident, charging him with "Behavior Which Could Lead to Violence."
Dckt. No. 21-5, Decl. of C. Cassidy ISO Def.'s Mot. for Summ. J., Ex. B. At the hearing on the RVR on February 6, 2009, plaintiff pleaded not guilty and stated that the RVR was false and that "C/O Casillas did not have to spray me. I was never a threat to him in any way. All I was asking why the TV was shut off [sic], when it never is when the C/Os count. I guess C/O Casillas didn't like me questioning the TV being shut off." Id. Plaintiff was found guilty and assessed a loss of 30 days behavioral credit, among other things. Id. The credits loss advanced his minimum eligible parole date ("MEPD") from June 6, 1998 to July 5, 1998 (both dates over ten years past at the time of the hearing). Id. Plaintiff is serving a term of 15-years-to-life for a second-degree murder conviction. Id.
II. Motion for Summary Judgment
A. Summary Judgment Standards
Summary judgment is appropriate when 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). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (1986). ("[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.'"). 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. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the ...