United States District Court, E.D. California
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 48)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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. (ECF Nos. 48, 53.) For the reasons set
forth here, Defendant’s motion will be
PLAINTIFF’S CORE ALLEGATIONS
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.
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).
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).
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).
The Excessive Force Incident
The Incident According to Defendant
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.
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.
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.
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.
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.
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. Pl.’s Dep. 43:18-20.
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
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.
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. ¶ ...