United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Plaintiff Merrick Jose Moore, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. All parties have consented to have the undersigned Magistrate Judge conduct all proceedings and enter judgment, pursuant to 28 U.S.C. § 636(c). See ECF Nos. 18 & 38. Pending before the court is defendants' November 1, 2013 motion for summary judgment, which has been fully briefed. See ECF Nos. 86, 88 and 90.
Also before the court are: (1) Plaintiff's motion, ECF No. 85, for "sanctions;" (2) defendants' motion, ECF No. 91, to strike Plaintiff's reply relating to the motion for sanctions; (3) defendants' motion, ECF No. 94, to strike Plaintiff's sur-reply to the summary judgment motion; and (4) defendants' motion, ECF No. 96, to strike Plaintiff's opposition to the motion to strike the sur-reply.
Plaintiff proceeds against four defendants. The following claims appear from Plaintiff's well-pleaded verified Amended Complaint: (1) an Eighth Amendment excessive force claim against L. Gonzalez, who (according to the complaint), in an unprovoked assault on March 17, 2010, dragged Plaintiff, shackled, to a urinal at the back of a bus, slammed him against a steel structure inside the bus urinal, and choked him to near unconsciousness; (2) an Eighth Amendment excessive force claim against defendant Bennett, defendant L. Gonzalez's direct supervisor, who witnessed the assault and did nothing to protect Plaintiff; (3) a First Amendment retaliation claim against L. Gonzalez and Bennett, both of whom threatened and intimidated Plaintiff in retaliation for his insistence on filing a grievance against L. Gonzalez; (4) a First Amendment retaliation claim against defendant Pomilia, who, on March 19, 2010, would not permit Plaintiff to retrieve his property for the bus ride back to SVSP, allegedly in retaliation for Plaintiff's filing a grievance against L. Gonzalez; (5) a First Amendment retaliation claim against defendant Fragoso, Pomilia's direct supervisor, who did nothing after Plaintiff complained to him of Pomilia's conduct; and (6) a First Amendment retaliation claim against defendant "K. Gonzalez, " who confiscated Plaintiff's legal documents, allegedly in retaliation for Plaintiff's filing the grievance against L. Gonzalez.
MOTION FOR SUMMARY JUDGMENT
Defendants L. Gonzalez, Bennett, Pomilia and Fragoso move for summary judgment, contending that: (1) defendant L. Gonzalez's unprovoked March 17, 2010 assault against Plaintiff - dragging the shackled prisoner down the aisle of a bus by his clothing to the urinal, slamming him against the steel structure, choking him to near-unconsciousness, dragging him back to his seat, and slamming him into it - was a "de minimis" use of force, and caused Plaintiff no harm; (2) defendant Bennett, who witnessed the entire attack and did nothing to stop it, did not disregard an excessive risk to Plaintiff's safety; (3) defendants Fragoso and Pomilia took no adverse action against Plaintiff on March 19, 2010; and (4) these defendants are entitled to qualified immunity.
I. Legal Standard for Rule 56 (Summary Judgment) Motions
Summary judgment is appropriate when the moving party "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). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation) , 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A), (B).
When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp. , 627 F.3d at 387 (citing Celotex , 477 U.S. at 325); see also Fed.R.Civ.P. 56(c)(1)(B). 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 Celotex , 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 . 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... 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(c)(1); Matsushita , 475 U.S. at 586 n.11. Moreover, "[a] Plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence." Lopez v. Smith , 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc).
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 Assoc. , 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 (citations omitted).
In evaluating the evidence to determine whether there is a genuine issue of fact, " the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority , 653 F.3d 963, 966 (9th Cir. 2011) (per curiam). 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).
In applying these rules, district courts must "construe liberally motion papers and pleadings filed by pro se inmates and... avoid applying summary judgment rules strictly." Thomas v. Ponder , 611 F.3d 1144, 1150 (9th Cir. 2010). However, "[if] a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion...." Fed.R.Civ.P. 56(e)(2).
On December 11, 2012, Plaintiff was provided notice of the requirements for opposing a motion pursuant to Rule 56, as required by Rand v. Rowland , 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry , 849 F.2d 409 (9th Cir. 1988), and Woods v. Carey , 684 F.3d 934 (9th Cir. 2012). See Defendants' Rand Warning to Plaintiff Regarding Opposing Summary Judgment (ECF No. 86-2).
II. Plaintiff's Excessive Force Claim Against L. Gonzalez
On March 17, 2010, Plaintiff was being transported by bus from the Salinas Valley State Prison ("SVSP"), a facility of the California Department of Corrections and Rehabilitation ("CDCR"), to CDCR's California State Prison-Sacramento ("CSPS"). When the bus made a stop at San Quentin State Prison, Plaintiff started talking to another inmate on the bus. In response, defendant L. Gonzalez, after telling Plaintiff to stop talking, violently assaulted and battered Plaintiff.
A. Legal Principles Governing Eighth Amendment Excessive Force Claim
The unnecessary and wanton infliction of pain on prisoners violates the Eighth Amendment. Ingraham v. Wright , 430 U.S. 651, 670 (1977). When prison officials are faced with an immediate disciplinary need or other emergency, they violate the Eighth Amendment when they use force in excess of that needed to maintain or restore discipline, and apply it "maliciously and sadistically to cause harm." Hudson v. McMillian , 503 U.S. 1, 6-7 (1992); Whitley , 475 U.S. at 320-21. Force used in a non-emergency situation violates the Eighth Amendment if it is used with deliberate indifference to inmate safety. Jeffers v. Gomez , 267 F.3d 895, 913 (9th Cir. 2001) (per curiam). A prison official is deliberately indifferent to a substantial risk of serious harm to inmates if that official is subjectively aware of the risk and does nothing to prevent the resulting harm. Id . (citing Farmer v. Brennan , 511 U.S. 825, 828-29 (1994)).
"[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment]..., the core judicial inquiry is... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson , 503 U.S. at 6-7 (citing Whitley v. Albers , 475 U.S. 312 (1986)). When determining whether the force was excessive, we look to the "extent of the injury..., the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, ' and any efforts made to temper the severity of a forceful response.'" Hudson , 503 U.S. at 7.
While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated." Id. at 9 (citing Whitley, at 327). An inmate complaining of "a push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim, " but "[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury." Wilkins v. Gaddy , 559 U.S. 34, 38 (2010) (per curiam).
B. Undisputed Facts
At all times relevant to this action, Defendant Bennett was employed by the California Department of Corrections and Rehabilitation "CDCR" as a Correctional Sergeant for the transportation unit. Defendants' Separate Statement of Undisputed Facts in Support of Defendants' Motion for Summary Judgment ("Facts") (ECF No. 86-4) ¶ 1.
At all times relevant to this action, Defendant L. Gonzalez was employed by CDCR as a Correctional Officer for the transportation unit. Facts ¶ 2.
At all times relevant to this action, Defendant Pomilia was employed by CDCR as a Correctional Officer at California State Prison, Sacramento "CSP-Sacramento". Facts ¶ 3.
At all times relevant to this action, Defendant Fragoso was employed by CDCR as a Correctional Sergeant at Salinas Valley State Prison "SVSP". Facts ¶ 4.
On March 17, 2010, Plaintiff was transported, along with other inmates, on a bus from SVSP to CSP-Sacramento. Facts ¶ 5; Moore Decl. ¶ 2.
Before the bus left SVSP, defendant Bennett told all the inmates on the bus that there was no talking when the bus was moving. Plaintiff's Facts ¶ 1; Declaration of M. Moore in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Moore Decl.") Decl. ¶ 3.
During the March 17, 2010 trip, the bus stopped at California State Prison, San Quentin "San Quentin" to drop off other inmates. Facts ¶ 6.
Whenever a transportation bus stops at an institution, inmates are unloaded from the bus and/or new inmates are loaded onto the bus. Facts ¶ 9.
It is essential that the transportation officers be able to communicate with each other and the inmates on the bus while transferring inmates on and off the bus. Facts ¶ 10.
During the stop at San Quentin, Plaintiff talked with another inmate on the bus. Facts ¶ 7.
When Plaintiff began speaking with another inmate, after the transportation bus stopped at San Quentin on March 17, 2010, Defendant L. Gonzalez shouted at Plaintiff to "shut the fuck up." Plaintiff's Facts ¶ 6; Moore Deposition at 14.
When Plaintiff said he thought the inmates could talk when the bus was stopped, Officer L. Gonzalez violently "snatched" Plaintiff out of his seat by his shoulder and jumpsuit, dragged Plaintiff to the back of the bus in the urinal area, slammed Plaintiff up against the steel structure, and choked Plaintiff with both hands, while stating "You don't open your fucking mouth." Plaintiff's Facts ¶ 7; Moore Deposition at 14; Defendants' Reply to Plaintiff's Response to Separate Statement of Undisputed Facts in Support of Defendants' Motion for Summary Judgment and Motion To Strike Plaintiff's Objections ("Defendants' Reply Facts") (ECF No. 90-1) ¶ 14.
As his choking of Plaintiff came to an end, Officer L. Gonzalez stated "Dont you ever question my orders, " and "I'll break your dam[n] neck if you ever disrespect me again." Plaintiff's Facts ¶ 8; Amended Complaint ¶¶ 11 & 12; Moore Decl.¶ 6. Officer L. Gonzalez then roared, "Take your ass back to your seat and don't say a word." Plaintiff's Facts ¶ 8; Moore Decl. ¶ 6.
Defendant L. Gonzalez dragged Plaintiff back to his seat and slammed him into the seat. Facts ¶ 15; Moore Deposition Excerpts ("Moore Depo.") (ECF ...