Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The parties have previously consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c). (See Order filed Jan. 31, 2013 (Doc. No. 54).) The action is proceeding on the claim set forth in his original complaint (Doc. No. 1), that the defendants subjected him to the excessive use of force and an unlawful body cavity search. The matter is now before the court on defendants' motion for summary judgment filed March 30, 2012 .*fn1 (Doc. No. 43.)
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
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 (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. 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. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. 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.
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 (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(e); Matsushita, 475 U.S. at 586 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 (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 (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. 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 (citation omitted).
On June 15, 2011 and again on July 31, 2012, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. Nos. 16, 51.)
At all times relevant to this action, plaintiff was an inmate incarcerated at High Desert State Prison (High Desert) and housed in Building 3 on Facility C. (Pl.'s Resp. to Defs.' Req. for Admissions, Ex. A to Decl. of Diana Esquivel in Supp. of Defs.' Mot. for Summ. J. (Esquivel Decl.), filed Mar. 30, 2012 (Doc. 43-10).) Late on the morning of February 11, 2009, as a result of several incidents that took place on Facility C, the yard was recalled by prison officials and inmates were required to submit to unclothed searches before returning to their cells. (Decl. of A. Audette in Supp. of Defs.' Mot. for Summ. J., filed Mar. 30, 2012 (Audette Decl.) (Doc. No. 43-3), at ¶ 2.) At approximately 1:15 p.m. defendant Von Rader and another correctional officer were conducting the unclothed body searches. (Decl. of B. Von Rader in Supp. of Defs.' Mot. for Summ. J., filed Mar. 30, 2012 (Von Rader Decl.) (Doc. No. 43-7), at ¶ 3.) Plaintiff was ordered to stay outside and undress. (Pl.'s Decl. in Opp'n to Defs.' Mot. for Summ. J. (Pl. Decl.), filed May 29, 2012, at ¶ 6.) However, plaintiff did not comply with that order. (Id.)
Defendants have presented the following evidence of what took place next. Plaintiff finally complied with the order to remove his underwear. (Von Rader Decl. at ¶ 7.) When plaintiff was ordered to squat and cough he turned to his left, which prevented the officers from seeing his rectal area. (Id. at ¶ 8.) Defendant Von Rader ordered plaintiff to turn away from the officers and to squat and cough. (Id. at ¶ 9.) Plaintiff did so quickly, without allowing officers to "fully see his rectal area." (Id. at ¶ 10.) Defendant Von Rader ordered plaintiff to squat and cough again, and took out his pepper-spray canister "because of [plaintiff]'s suspicious conduct." (Id. at ¶ 11.) As plaintiff squatted, defendant Von Rader "saw a white object protruding from his rectum" and defendant Von Rader "yelled that [plaintiff] had a weapon. (Id. at ¶ 12.) Plaintiff began to run and, as he did so, he removed the weapon from his rectum. (Id. at ¶ 13.)
Defendant Fleming observed plaintiff "reach back into his rectum and retrieve and unidentified objection." (Decl. of B. Fleming in Supp. of Defs.' Mot. for Summ. J., filed Mar. 30, 2012 (Fleming Decl.) (Doc. No. 43-8), at ¶ 6.) Plaintiff then ran towards two cells with the object in his hand. (Id. at ¶ 7.) Defendant Fleming and another officer yelled for plaintiff to drop the object and get down. (Id. at ¶ 8.) Plaintiff ignored those orders and defendant Fleming pepper sprayed plaintiff in the face and upper body. (Id. at ¶ 9.) As that happened, plaintiff threw the weapon under one of the cell doors. (Id. at ¶ 9.)
Defendant Von Rader observed pepper spray hit plaintiff in the face as plaintiff went down onto his stomach. (Von Rader Decl. at ¶ 15.) Defendant Von Rader "kept [his] eyes on [plaintiff]'s hands and went to [plaintiff's] right side." (Id. at ¶ 16.) Defendant Audette went to plaintiff's left side. (Id. at ¶ 17.) Defendant Audette ordered plaintiff to place his hands behind his back, but plaintiff refused to comply with that order and put his hands under his torso. (Audette Decl. at ¶¶ 7-8.) After plaintiff failed to comply with repeated orders by correctional officers, defendant Audette knelt beside him and used his right hand to pull plaintiff's left arm out from under his body. (Id. at ¶ 9.) Plaintiff then complied with defendant Audette's order and brought his right hand out. (Id.) Defendant Audette placed his "right knee on [plaintiff]'s upper back" and "held [plaintiff] down with his hands." (Id. at ¶ 10; Von Rader Decl. at ¶ 18.) Defendant Von Rader placed plaintiff in handcuffs and leg restraints. (Id. at ¶ 19.)
Thereafter, defendants Williams and Goetchius escorted plaintiff to the holding cell in the medical clinic as ordered by defendant Audette. (Decl. of R. Goetchius in Supp. of Defs.' Mot. for Summ. J., filed Mar. 30, 2012 (Goetchius Decl.) (Doc. No. 43-5), at ¶ 5.) Neither defendant dropped plaintiff on the floor of the holding cell, nor did defendant Goetchius hold plaintiff down on the floor of that cell. (Id. at ¶ 11.)
While plaintiff was in the holding cell, defendant Wheeler observed "what appeared to be a white-paper material between [plaintiff]'s buttocks." (Decl. of B. Wheeler in Supp. of Defs.' Mot. for Summ. J., filed Mar. 30, 2012 (Wheeler Decl.) (Doc. No. 43-8), at ¶ 6.) Defendant Wheeler "informed medical staff that [plaintiff] might have something concealed in his anal area." (Id. at ¶ 7.) Defendant Wheeler was subsequently informed after inspection of plaintiff's rectal area that medical staff did not find anything. (Id.)
While plaintiff was being restrained, defendant Fleming and another correctional officer looked in the cell where plaintiff had tossed the object. (Fleming Decl. at ¶ 10-11.) They found a "weapon made from flat metal, sharpened to a point at one end and a clear plastic handle at the other end." (Id. at ¶ 19.) Defendant Fleming placed the weapon in a container, "processed it as required under prison policy and procedures" and went to the holding cell where plaintiff was being held and read him his Miranda warning. (Id. at ¶ 20-21.) Defendant Fleming issued a prison disciplinary report against plaintiff for possession of a weapon. (Ex. C to Esquivel Decl.) Plaintiff was eventually found guilty of that disciplinary charge and assessed 360 days loss of credit. (Id.) In addition, on November 19, 2009, plaintiff pleaded guilty in state court to the criminal charge of possession of a sharp instrument and received a sentence of eight years in prison. (Ex. D to Defendants' Request for Judicial Notice.*fn3
In opposition to defendants' motion for summary judgment plaintiff has presented evidence painting a different picture of what took place after he was ordered by correctional officers to stay outside and undress. Plaintiff's evidence indicates the events as follows. As plaintiff was proceeding to his cell after refusing to comply with the officer's order to stay outside and undress, plaintiff heard someone yell "spray that motha fucker" and he was tackled from behind to the floor by defendant Fleming. (Pl.'s Decl. in Opp'n to Defs.' Mot. for Summ. J., filed May 29, 2012 (Pl. Decl.), at ¶¶ 6-7.) While plaintiff was "laying dazed on the C-section dayroom floor," defendant Fleming and two other officers "emptied a cannister each of MK9 OC pepper spray into [his] face." (Id. at ¶ 8.) ...