ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING DEFENDANT'S MOTION TO DISMISS [Dkt. No. 62.]
GONZALO P. CURIEL, District Judge.
Plaintiff Eduardo Nunez ("Plaintiff"), a state prisoner proceeding pro se, brought an action under 42 U.S.C. § 1983 against Defendant Correctional Officer F. Ramirez ("Defendant") for violating his Eight Amendment right against excessive force. Defendant moves for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule"). On July 22, 2013, the Magistrate Judge issued a Report and Recommendation denying Defendant's Motion for Summary Judgment. (Dkt. No. 74.) After careful consideration of the pleadings and relevant evidence, and for the reasons set forth below, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Defendant's Motion for Summary Judgment.
Plaintiff filed his First Amended Complaint ("FAC") on February 25, 2011 against Defendants Correctional Officer F. Ramirez, Sergeant Centeno, Lieutenant Caldwell, and Correctional Officer Wagner. On March 14, 2011, Defendant Ramirez filed a Motion to Dismiss the FAC. (Dkt. No. 39.) On May 26, 2011, Defendants Wagner, Centeno and Caldwell filed a Motion to Dismiss the FAC. (Dkt. No. 48.) On August 2, 2011, Plaintiff filed an Opposition to both Defendant Ramirez's and Defendants Wagner, Centeno, and Caldwell's Motion to Dismiss. (Dkt. No. 50.) On January 24, 2012, the Court issued an order adopting the Magistrate Judge's Report and Recommendation granting the Motion to Dismiss in part and denying in part. (Dkt. No. 55.) The Court denied Defendant Ramirez's Motion to Dismiss but granted Defendants Wagner, Centeno, and Caldwell's Motion to Dismiss the FAC. ( Id. )
On February 14, 2013, Defendant Ramirez filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 62.) On April 18, 2013, Plaintiff filed Oppositions to Defendant's Motion for Summary Judgment. (Dkt.Nos. 64, 70)
The following facts are undisputed and are taken from the Magistrate Judge's Report and Recommendation. On May 12, 2007, Plaintiff was an inmate at Centinela State Prison ("Prison"). During the relevant time, Defendant Ramirez was employed as a correctional officer for the Prison. Officer Wagner noticed four inmates drinking a red liquid out of a clear plastic can. Officer Wagner alerted Defendant Ramirez and Sergeant Centeno of the violation. Defendant approached the group of inmates and accused Plaintiff of drinking illegally manufactured alcohol. Plaintiff suggested to the Defendant, "If you saw who was drinking why don't you address that person instead of disrespecting everybody." Plaintiff and Defendant then exchanged a series of crude insults. Thereafter, the group of prisoners were ordered to submit to a body search.
From this point forward, the parties allege conflicting facts. Plaintiff contends that Sergeant Centeno ordered him to submit to an unclothed body search. Plaintiff was then handcuffed, and Defendant Ramirez took him to the program office. While Defendant was transferring Plaintiff to the program office, he alleges that he said to Defendant Ramirez, "Ya mamasela". Defendant Ramirez responded by pulling Plaintiff to the ground and repeatedly ground his face into the floor. Plaintiff contends that he crossed his legs to show he was not resisting.
Defendant Ramirez asserts a different factual scenario. Defendant claims that he did not conduct an unclothed search of Plaintiff. Rather, Defendant asserts that he immediately handcuffed Plaintiff and headed toward the medical clinic to determine if Plaintiff was intoxicated. Defendant contends that Plaintiff began to resist and struck Defendant in the chest with his elbow. Defendant tried to regain control of Plaintiff by using his body weight to take Plaintiff to the ground. Defendant denies that he ground Plaintiff's face into the floor.
Both parties agree that Plaintiff's injury was the result of the altercation.
I. Scope of Review of Magistrate Judge's Report and Recommendation
The Court will review the objections Magistrate Judges's Report and Recommendation de novo pursuant to 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify in whole or in part, the findings or recommendations made ...