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Armando Hernandez, Jr v. J. Burnes

August 16, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


In his second amended complaint for damages, Plaintiff, Armando Hernandez, claims that Defendants Burnes and Hernandez subjected him to excessive force. (Doc. 20) In this current motion, Defendants seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 47). Defendants contend that the force used was necessary and reasonable based upon their reasonable perception that Plaintiff was disruptive and refusing to comply with orders and that Plaintiff's injuries were only minimal. Id. at 47-1 at 1-2.

In his opposition, Plaintiff claims that the use of force was unnecessary and unreasonable and was used for purposes of harassment and that it was preceded by Defendants yelling obscenities, insults and racial slurs at him. (Doc. 51 at 5-7). During the incident, Plaintiff claims Defendants struck him with their fists and stomped on him with their feet. Id. at 7.

For the following reasons, Defendant's motion for summary judgment is DENIED.


Plaintiff initiated this action by filing a complaint for civil rights violations on March 2, 2009. (Doc. 1). The Court screened the complaint and on December 21, 2010, ordered the Second Amended 4 Complaint to be served on Defendants Burnes and Hernandez related to Plaintiff's claims that they 5 subjected him to excessive force. (Doc. 21 at 1) Defendants answered the complaint on May 24, 6 2011 (Doc. 33) and filed the instant motion on June 1, 2012. (Doc. 47) Plaintiff filed his opposition 7 on July 16, 2012 (Doc. 51) and Defendants replied on July 19, 2012 (Doc. 54). 8


On October 7, 2008, Plaintiff was awaiting his appearance before the Institutional Correctional Committee, to consider whether he would be transferred to a different facility. (Doc. 51 at 6) Plaintiff sat at a table nearby to prepare for the hearing. Id. Defendants approached and required that he submit to a "pat-down" search for weapons. Id. Defendant Burnes conducted the search during which Plaintiff fell down into a sitting position. Id. Plaintiff contends that he lost his balance during the pat-down which caused him to sit. Id. Perceiving this response to be aggressive, Burnes and Hernandez used force. (Doc. 47-3 at 1-2; Doc. 47-4 at 2-3) They contend they used only that force needed to regain control of Plaintiff. Id.

Plaintiff, however, contends that the officers began striking him with fists and stomping him on his back and head and smashing his face onto the ground. (Doc. 51 at 7) Plaintiff contends that he suffered bruises, scratches and gashes on his head, arms and knees. Id. Plaintiff contends that these injuries were documented by medical staff and via photos taken by correctional personnel. Id. Indeed, medical records demonstrate that he suffered abrasions on his arm, knee and forehead. (Doc. 47-5 at 4) He claims that the event caused him ongoing pain in his shoulder and back and caused him emotional injuries. (Doc. 51 at 7)


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." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). 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 should be entered, "after adequate time for discovery and 2 upon motion, against a party who fails to make a showing sufficient to establish the existence of an 3 element essential to that party's case, and on which that party will bear the burden of proof at trial." 4

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 5

A party seeking summary judgment bears the "initial responsibility" of demonstrating the 6 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only 7 if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact 8 is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty 9 Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). The party seeking summary judgment demonstrates it is appropriate by "informing the district court of the basis of its motion, and identifying those portions of ‗the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).

If the moving party meets its initial burden, the burden then shifts to the opposing party to identify "a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson, 477 U.S. at 257 (1986)) (emphasis in the original); see also Fed R. Civ. P. 56(e). The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Matsuhita, 475 U.S. at 586 n.11; Fed. R. Civ. P. ...

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