FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The remaining defendant in this action, Patton, moves for summary judgment. Dckt. No. 97. For the reasons that follow, the undersigned recommends that the motion be denied.
This action proceeds on the verified amended complaint filed on
December 14, 2009. Dckt. No. 29. Plaintiff attests that defendant used
excessive force against him on March 6, 2007. Id. at 3-7.*fn1
Specifically, plaintiff alleges that defendant escorted
plaintiff out of a single-man holding cage at High Desert State Prison
("HDSP") on that date. Plaintiff alleges that the
defendant, while applying handcuffs to plaintiff, said "Let me show
you something." Id. at 4. Plaintiff claims that he turned his head
slightly to see defendant drop the right hand of the cuffs and that
defendant then twisted plaintiff's left arm with the cuff on it,
pulling plaintiff's arm out of the cage and lifting it upwards, which
caused plaintiff's shoulder to get pinched by the opening of the cage.
Id. Plaintiff asserts that because this position was very painful, he
reflexively pulled his right hand into the cage. Id. Allegedly,
defendant then yelled, "Put your hand back out of the cage!" Id.
Plaintiff then responded, "I can't, I can't!" Id. But then, painfully,
plaintiff was able to put his hand back out. Id. at 4-5. Defendant
eased on plaintiff's arm and backed him out of the cage, fully
handcuffed. Id. at 5.
According to the complaint, Correctional Officer Gullion escorted plaintiff a short distance while defendant yelled at him from behind. Id. Plaintiff did not realize defendant was yelling at him until he turned his head slightly to check. Id. Defendant then said, "Bring him back!" Id. Gullion brought him back, and defendant "got an attitude" with plaintiff, "yelling one thing or another." Id. Defendant and Gullion placed plaintiff's chest and face against the window of the "MTA" office, with plaintiff's feet about a foot from the wall to avoid stepping on some boxes. Id. Plaintiff tilted his head back to look left and right, "but never with an attitude towards an Officer." Id. at 5-6 (emphasis in original). Defendant told Gullion to "take him to the ground," which both officers then did. Id. at 6.
Plaintiff says he felt weight and pressure on his back with his legs held up in a "hog tie" type of position." Id. Plaintiff started to yell, "What the fuck, what the fuck!" Id. Defendant and Gullion responded, "Stop resisting!" Id. Plaintiff, however, was not able to resist from the "hog tie" position. Id. Plaintiff started to breathe heavily with the weight on his back and felt a surge of adrenaline, which caused him to drool onto his face. Id. He did not spit or try to spit on either officer. Id.
Defendant punched plaintiff around his left eye with a closed fist, yelling, "Stop spitting, stop spitting!" Id. Defendant punched plaintiff again in the same location. Id. Plaintiff yelled, "I'm not spitting, what the fuck! Stop! I'm sorry." Id. Plaintiff held still, but defendant punched him again, six or seven times total. Id. Defendant and Gullion had plaintiff's legs lifted so high that his chin scraped the concrete as he turned his head between each punch. Id. Defendant then struck plaintiff hard with his knee, twice. Id. at 7. Plaintiff "felt a big thud" on his head and a "big crack" around his eye. Id. Plaintiff's eye swelled shut and blood dripped down his face and shirt to the ground. Id.
Plaintiff's eye injury required surgery with a lengthy recovery and allegedly it is permanently damaged. Id.
According to defendant, during the incident in question he "had to use force against [plaintiff] to defend myself." Decl. of W. Patton ISO Def.'s Mot. for Summ. J. (hereinafter "Patton Decl.") ¶ 2. Defendant's account of the incident is that plaintiff resisted defendant's and Gullion's attempts to restrain him. Id. ¶ 3.
To control Hightower and prevent further resistance, Officer Gullion and I had to take Inmate Hightower to the floor. After hitting the floor, Officer Gullion straddled Hightower and I maneuvered around in front of Hightower. Hightower then tried to break free from our holds by attempting to twist and turn away from them and wiggle away from our grasp. Hightower's attempt to free himself from our hold caused me concern because I did not know what Hightower was thinking or where Hightower was going to go, and Hightower was not complying with our orders. Several times, I ordered Hightower to "stop resisting." Hightower then attempted to roll over onto his back, and I tried to turn him down. At that point, Hightower turned up and spit at me. To stop further spitting, I punched Hightower by bringing my right hand to stomach level, extending it out to strike Hightower, and bringing it back. I ordered Hightower to stop spitting. Due to Hightower's facial expressions, I believed he was going to spit again. Therefore, I punched him a second time. This whole incident took place before I could pull out my pepper spray canister or baton out of the holster. After the second punch, the rest of the staff piled on top of inmate Hightower. Hightower was still kicking but the staff was able to get Hightower to comply based on the fact that he had five people on top of him.
Plaintiff was charged with a rule violation (battery on a peace officer) for his conduct during the incident. Decl. of C. Demant ISO Def.'s Mot. for Summ. J. (hereinafter "Demant Decl."), Ex. A. The hearing officer found him guilty based on: (1) a disciplinary report filed by a Correctional Officer M. Ackernecht, who wrote that, as he assisted Gullion and defendant in subduing plaintiff, plaintiff kicked him five times, (2) a report by a Lieutenant Cummings who wrote that defendant saw plaintiff kick Ackernecht forcibly on his upper body with enough force that it hit him backwards, (3) a medical report documenting plaintiff's injuries, which the hearing officer found consistent with the description of the incident in the rules violation report, and (4) the hearing officer's finding that plaintiff's testimony that he did not intend to resist was not credible in the face of evidence that plaintiff kicked Ackernecht five times. Id. Plaintiff was assessed 150 days of lost credit. 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, ...