The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants Rayner and Hastey used excessive force in violation of the Eighth Amendment when they sprayed O.C. spray into his cell during a cell search.
Pending before the court is defendants' summary judgment motion. Defendants argue that they are entitled to qualified immunity. After carefully reviewing the record, the undersigned recommends that defendants' motion be denied.
Also pending is plaintiff's motion for sanctions. For the following reasons, this motion is denied.
II. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).*fn1
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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
Consequently, 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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 630. 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 a 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 586 (citation omitted).
At all relevant times, defendants Hastey and Rayner worked at High Desert State Prison ("HDSP"). At all relevant times, plaintiff was housed at HDSP. At all relevant times, inmate Dicey was plaintiff's cellmate. On February 2, 2011, defendants were assisting in mass cell searches in plaintiff's building. Defendants approached the cell shared by plaintiff and Dicey to conduct a cell search.
Defendants announced to plaintiff and Dicey that they were there to conduct a cell search. Neither defendant entered the cell. Plaintiff cooperated with defendants during their attempt to initiate the cell search. Both defendants sprayed some amount of O.C. spray into the cell.
The parties dispute the circumstances that led to the use of the O.C. spray following the arrival of the defendants' at plaintiff's cell. The parties also dispute the nature and extent of plaintiff's injuries.
Defendants' Version of Events
According to defendants, when defendant Hastey arrived at plaintiff's cell, he instructed both plaintiff and Dicey to stop what they were doing and come to the cell door. (Dkt. 47-2 at 5.) Dicey disobeyed the order and began to rummage through items on the shelf inside the cell. (Id.) Defendant Hastey again ordered Dicey to stop what he was doing and to show his hands. (Id.) Dicey did not comply and instead replied, "fuck you." (Id.) Dicey continued to conceal his hands on the shelf, and then grabbed an unknown object in his right hand. (Id.) Dicey closed his hand then walked toward the sink/toilet area. (Id.) Defendant Hastey was concerned that Dicey was trying to destroy contraband. (Id.)
Defendant Rayner ordered defendant Dicey to comply with defendant Hastey's orders. (Id.) Instead, Dicey put his hands under towels under the sink, which still concealed his hands. (Id.) Both defendants ordered Dicey to show his hands, with negative results. (Id.)
Defendant Rayner then ordered Dicey to show his hands or else O.C. spray would be used on him. (Id.) Dicey ignored defendant Rayner's warning. (Id.) Dicey kept his left hand under the towels and then placed his ...