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Bosley v. Valasco

United States District Court, E.D. California

July 19, 2016

M. VELASCO, et al., Defendants.



         Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s Second Amended Complaint charging Defendant Velasco with excessive force in violation of the Fourteenth Amendment. Pending before the Court is Defendant’s motion for summary judgment, which Plaintiff opposes.[1] (ECF Nos. 48, 53.) For the reasons set forth here, Defendant’s motion will be denied.[2]


         Plaintiff alleges that when he was housed at the Fresno County Jail as a pretrial detainee, he was charged by non-party Officers Sandoval and Rodriguez with delaying the feeding process, a minor rules violation. Several minutes after that situation was resolved, Defendant Officer Velasco walked over to Plaintiff and punched him in the eye and then placed his knees on Plaintiff’s lower back and his elbows on Plaintiff’s face. Defendant also grabbed Plaintiff’s right hand and dislocated Plaintiff’s “pinky” and “ring” fingers.


         Any party may move for summary judgment, and 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); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

         Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and, in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984, and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011).


         A. The Excessive Force Incident

         1. The Incident According to Defendant

         On December 14, 2013, Plaintiff was housed as a pretrial detainee in the Fresno County Jail where Defendant Correctional Officer Velasco was working. Decl. of Marti Velasco ¶ 3; Pl.’s Dep. 76:4-5.

         That evening, non-party Correctional Officers Sandoval and Rodriguez were conducting the food distribution process in Pod-C, where Plaintiff was housed. Decl. of Carlos Sandoval ¶¶ 2-3; Decl. of Enrique Rodriguez ¶¶ 2-3. All inmates who intend to eat are required to be in line at the pod door before the feeding process begins. Sandoval Decl. ¶ 3; Rodriguez Decl. ¶ 3. Each inmate is required to show his wristband to the officer. Sandoval Decl. ¶ 3; Rodriguez Decl. ¶ 3.

         When Officers Sandoval and Rodriguez began distributing food, other inmates lined up to receive meals, but Plaintiff was on the phone. Sandoval Decl. ¶ 3; Rodriguez Decl. ¶ 3; Pl.’s Dep. 76:14-16. Officer Sandoval asked Plaintiff to get off the phone and line up for his meal. Sandoval Decl. ¶ 4. Plaintiff did not hang up the phone, but instead cursed at Officer Sandoval. Id.

         After Officers Sandoval and Rodriguez distributed the meals to the inmates in Pod-C, Plaintiff approached them and demanded his evening meal. Sandoval Decl. ¶ 5; Rodriguez Decl. ¶ 4. When the officers told Plaintiff that he would receive his meal after they finished feeding the rest of the pods, Plaintiff became argumentative. Sandoval Decl. ¶ 5. At this point, Officer Sandoval opened the door to exit the pod. Id As Officer Rodriguez followed him out and attempted to shut the door, Plaintiff pushed the door hard back towards Officer Rodriguez and the door hit him. Id ¶ 6; Rodriguez Decl. ¶ 5.

         Construing this as an act of aggression towards Officer Rodriguez, the officers immediately opened the door, grabbed Plaintiff, and pulled him out of the pod. Sandoval Decl. ¶ 6; Rodriguez Decl. ¶ 5. Plaintiff began to resist, and Officer Rodriguez applied a rear wrist lock in an attempt to gain control. Rodriguez Decl. ¶ 5. Officer Rodriguez does not remember to which wrist he applied the wrist lock. Id.

         Once the officers got Plaintiff to the ground, Plaintiff got out of the wrist lock and tucked his arms under his body. Sandoval Decl. ¶ 6; Rodriguez Decl. ¶ 6. Plaintiff became generally uncooperative and combative and refused to respond to directives to place his hands behind his back. Sandoval Decl. ¶ 6; Rodriguez Decl. ¶ 6. They tried to handcuff Plaintiff but he kept moving his body and would not allow his arms to be pulled together. Rodriguez Decl. ¶ 6; Velasco Decl. ¶ 5. He also kept trying to use his legs for leverage to get off of the ground, so Officer Sandoval held Plaintiffs legs. Sandoval Decl. ¶ 7; Pl.’s Dep. at 43:21-22. Plaintiff began to squirm and scoot during this encounter.[3] Pl.’s Dep. 43:18-20.

         While Officers Sandoval and Rodriguez were struggling with Plaintiff, Officer Velasco, who was conducting feeding in Pod-E, responded to a call to assist. Velasco Decl. ¶ 4. When he walked out of Pod-E, he observed Officers Sandoval and Rodriguez struggling with Plaintiff who was resisting the officers. Id.

         When Officer Velasco arrived, he told Plaintiff to put his hands behind his back and stop resisting. Velasco Decl. ¶ 6. Plaintiff was not yet handcuffed. Pl.’s Dep. at 77:1-4. Plaintiff did not follow Officer Velasco’s instructions, and Officer Velasco then participated in subduing Plaintiff by pulling Plaintiff’s arms and hands together so that Officer Sandoval could place handcuffs on Plaintiff’s wrists. Sandoval Decl. ¶ 8; Velasco Decl. ¶ 6; Rodriguez Decl. ¶ 8. Officer Velasco does not remember which of Plaintiff’s arms he grabbed, and he did not employ any special wrist lock maneuver when assisting with handcuffing him. Velasco Decl. ¶ 6. Because Plaintiff was resisting the other two officers, Officer Velasco asserts that the force he used was minimal and necessary to maintain the security and order of the jail. Id. ¶ 7.

         After the handcuffs were placed on him, Plaintiff was lifted from the ground and taken to the inmate services room and then the infirmary for medical evaluation. Velasco Decl. ¶ ...

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