The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983 and defendants' motion for summary judgment is currently pending. Pending before the court are: 1) defendants' motion for summary judgment, filed on February 29, 2012; 2) plaintiff's [cross-]motion for summary judgment, filed on March 19, 2012, to which defendants filed their opposition on April 17, 2012, as well as their reply to plaintiff's opposition to defendants' summary judgment motion; 3) plaintiff's second cross-motion for summary judgment filed on May 18, 2012, to which defendants filed their opposition on June 4, 2012. Although plaintiff had been provided the requirements to oppose a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), in light of Woods v. Carey, 684 F.3d 934 (9th Cir. 2012),*fn1 decided on July 6, 2012, plaintiff was once again informed. Plaintiff, on August 6, 2012, filed supplemental documentation to oppose defendants' motion. The court will construe plaintiff's "motion for summary judgment," filed on March 19, 2012, as both an opposition to defendants' motion summary judgment motion and a cross-motion for summary judgment. The filing plaintiff identified as his cross-motion for summary judgment, file-stamped May 18, 2012, but by application of the mailbox rule,*fn2 filed on May 15, 2012, would, as defendants' note, be untimely if the court so construed it, as the court had granted plaintiff an extension of time until April 17, 2012, to file a cross-motion and opposition, but had permitted plaintiff until May 15, 2012 to file any reply. It would also be inapposite if construed as a surreply, as defendants' argue. However, it does appear to be a reply to defendants' opposition to plaintiff's March 19, 2012 [cross]-motion for summary judgment. Therefore, the cross-motion for summary judgment, filed on May 18, 2012, will be deemed a reply to defendants' opposition to plaintiff's cross-motion, and not a belated, additional cross-motion or inapposite surreply to defendants' summary judgment motion. With his latest, post-Woods supplemented opposition, plaintiff is now proceeding on both an opposition and a cross-motion for summary judgment (docket # 80); a reply to defendants' opposition to plaintiff's cross-motion (docket # 82); and a supplemented opposition (docket # 86). Plaintiff's supplemental opposition is largely, if not entirely, duplicative of his reply.
Motion for Summary Judgment
Defendants move for summary judgment on the following grounds: 1) defendants Fannon and Gray used force that was "reasonable, necessary, and minimal"; 2) defendant "Barton did not see any officer use excessive or unreasonable force"; 3) defendants Gower and McDonald did not have any knowledge of defendants Fannon's and Gray's use of force or "of any safety concern plaintiff had"; and 4) defendants are entitled to qualified immunity. Notice of Motion and Motion for Summary Judgment (MSJ), p. 1.
Summary Judgment Standards under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "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).
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, 106 S. Ct. 2548, 2553 (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., at 324, 106 S. Ct. at 2553. 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, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id., at 323, 106 S. Ct. at 2552. In such a circumstance, summary judgment should 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, 106 S. Ct. at 2553.
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 does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this 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 the dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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 631. 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, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the 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, 106 S. Ct. at 1356. 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 587, 106 S. Ct. at 1356 (citation omitted).
On June 16, 2009, and again on October 6, 2009, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). In addition, following the issuance of Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), the court provided Rand notice once again and also permitted additional time for plaintiff to submit further evidence opposing defendants' summary judgment motion should he so choose. The above advice would, however, seem to be unnecessary as the Ninth Circuit has held that procedural requirements applied to ordinary litigants at summary judgment do not apply to prisoner pro se litigants. In Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010), the district courts were cautioned to "construe liberally motion papers and pleadings filed by pro se inmates and ... avoid applying summary judgment rules strictly." Id. at 1150. No example or further definition of "liberal" construction or "too strict" application of rules was given in Ponder suggesting that any jurist would know inherently when to dispense with the wording of rules. Since the application of any rule which results in adverse consequences to the pro se inmate could always be construed in hindsight as not liberal enough a construction, or too strict an application, it appears that only the essentials of summary judgment, i.e., declarations or testimony under oath, and presentation of evidence not grossly at odds with rules of evidence, need be submitted by the pro se party.
Plaintiff is proceeding on his complaint, filed on March 16, 2009, against defendants Officer J. Fannon; Officer M. Gray, Sergeant R. Barton; defendant Gower, Deputy Warden of High Desert State Prison (HDSP); and Mike McDonald, Acting Warden of HDSP.*fn4 The gravamen of plaintiff's complaint is that he was subjected to excessive force by defendants Fannon and Gray at High Desert State Prison (HDSP) on 2/29/08, despite having been ordered by a physician to be put on single cell status, pending the outcome of neck surgery, and despite having been cautioned by a Mercy Hospital physician (Dr. Rahimifar) that if he were hit in the head one time, he would never walk again. Complaint, pp. 3-4.
Plaintiff claims that defendant Fannon told plaintiff on 2/29/08 that he would be moved to the gym, but plaintiff told Fannon that, due to his severe neck injury, he would go to administrative segregation (ad seg or ASU) instead. Plaintiff was then taken in waist restraints to the program office where defendant Barton told plaintiff that he did not "give a s- - t" about plaintiff's neck injury and that HDSP made its own rules. Id.
When plaintiff, still in waist restraints, saw that he was then being taken to the gym, he stopped walking; thereafter, defendants Fannon and Gray forced plaintiff into the gym, smashing his head into a door, after which he was taken to [Banner] Lassen Medical Facility where a doctor told him he had suffered a severe cervical strain. (Plaintiff notes that he has a pending § 1983 action in the Ninth Circuit with respect to the accident that caused the original C-2 fracture at Lancaster State Prison in 2005). Id., at 4.
Plaintiff was told by defendant McDonald that he does not care that plaintiff was "filing charges against the officers," and that he should do as he was told and he would not get hurt. Plaintiff states that he fears for his life and safety and is fearful of retaliation. Plaintiff asks for money damages from each defendant ([including defendants Gower and the warden McDonald] for "let[t]ing this happen"). Plaintiff also asks for injunctive relief in the form of an emergency transfer. (Plaintiff also asks that lost time credits be restored). Id., at 3-4.
Among the exhibits plaintiff attaches to his complaint are a copy of an HDSP inmate appeal he filed through to the third level denial, regarding his request for a transfer and appealing the incident giving rise to the instant cause of action (Complaint, pp. 17- 32); a copy of a classification chrono, showing plaintiff had a classification score of 41 as of 12/26/07, and noting that he was unassigned at that time due to medical concerns (Complaint, p. 33); a copy of a letter directed to an Internal Affairs special agent in Rancho Cucamonga, complaining of the alleged actions by defendants Fannon and Gray herein (Complaint, pp. 35-36); a copy of a Disability Placement Program form, dated 6/12/08, showing plaintiff is an intermittent wheelchair user, restricted to a lower bunk and no stairs (Complaint, p. 37), and a copy of 2/29/08 rules violation report which eventually resulted in plaintiff's being found guilty of attempted battery on a peace officer (defendant Fannon, herein) in the apparent incident giving rise to this cause of action in an April, 2008, disciplinary hearing, for which plaintiff was evidently assessed a 150-day credit loss as well as a SHU (security housing unit) term. Complaint, pp. 40 - 76.
Eighth Amendment Excessive Force Legal Standard "[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7,112 S. Ct. 995, 999 (1992), citing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986). When determining whether the force was excessive, we look to the "extent of the injury..., the need for application of force, the relationship between that need and the amount of force used, the threat 'reasonably perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful response.'" Hudson, supra, at 7, 112 S. Ct. at 999.
While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated." Hudson, supra, at 9, 112 S. Ct. at 1000, citing Whitley, at 327, 106 S.Ct., at 1088.
Failure to Protect "'[P]rison officials have a duty...to protect prisoners from violence.... .'" Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 1976 (1994). Prison officials must ensure not only the safety of the prison staff, administrative personnel and visitors, but also are obliged "'to take reasonable measures to guarantee the safety of the inmates themselves.'" Whitley v. Albers, 475 U.S. 312, 320, 106 S. Ct. 1078, 1084  (1986), quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S.Ct. 3194, 3200  (1984). "[A] prison official violates the Eighth Amendment when two requirements are met. First, the deprivation alleged must be, objectively, 'sufficiently serious'.... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. at 834, 114 S.Ct. at 1977. Second, "[t]o violate the Cruel and Unusual Punishments Clause, a prison official must have a 'sufficiently culpable state of mind' ... [T]hat state of mind is one of 'deliberate indifference' to inmate health or safety." Id. The prison official will be liable only if "the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. at 1979.
Plaintiff failed to conform to Fed. R. Civ. P. 56(c) regarding
"supporting factual positions," or to comply with the requirement of
L.R. 260 (a), that a motion [or cross-motion] for summary
judgment"shall be accompanied by a 'Statement of Undisputed Facts'
that shall enumerate discretely each of the specific material facts
relied upon in support of the motion and cite the particular portions
of any pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied upon to establish the fact." Nor
did plaintiff, in his opposition, "reproduce the itemized facts in the
Statement of Undisputed Facts and admit those facts that are
undisputed and deny those that are disputed, including with each
denial a citation to the particular portions of any pleading,
affidavit, deposition, interrogatory answer, admission, or other
document relied upon in support of that denial." L.R. 260(b), in part.
This failure to follow procedure particularly burdens this court,
requiring that the undersigned comb through all of plaintiff's filings
in order to determine whether a particular fact set forth as
undisputed by defendants is, in fact, undisputed. However, such is the
lot of the court in light of the re-emphasis by the Ninth Circuit in
Thomas v. Ponder, 611 F.3d at 1150, that pro se inmates are "expressly
exempted" from strict compliance with summary judgment rules; cf.,
Woods v. Carey, 684 F.3d at 940 (recognizing the burden placed on
district courts by requiring Rand, supra, and Wyatt*fn5
notice for pro se inmates contemporaneous with, respectively,
the filing of summary judgment and unenumerated 12(b) motions by
defendants, but nevertheless insisting that, should defendants fail to
provide such notice, it is the court's "ultimate responsibility.").
Notwithstanding, the court agrees with defendants, at the outset, with
respect to any cross-motion for summary judgment, plaintiff has wholly
failed to show entitlement to entry of judgment in his favor. See
defendants' reply (docket # 81), p. 4. Plaintiff, in reciting sections
of Title 15 of the California Code of Regulations regarding inmate
housing and classification in his putative cross-
motion, does indeed ...