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Gilmore v. Lockard

United States District Court, E.D. California

August 4, 2016

C. LOCKARD, et al, Defendants.


         Plaintiff C. Dwayne Gilmore is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Currently before the Court is Plaintiff’s motion for summary judgment filed on December 8, 2015. (ECF No. 156.) Defendants have filed opposition to the motion. (ECF No. 167.) Plaintiff has filed a reply. (ECF No. 177.)



         This action proceeds on the March 8, 2013, first amended complaint against Defendants Correctional Officer (C/O) Lockard, C/O Lopez, and C/O Hightower for use of excessive force in violation of the Eighth Amendment. All other claims and Defendants have been dismissed. The conduct occurred on July 8, 2010, while Plaintiff was housed at Kern Valley State Prison.



         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) (quotation marks omitted); Washington Mut. Inc. v. U.S., 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) (quotation marks omitted). 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); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). With regard to a plaintiff’s motion for summary judgment, as the party with the burden of persuasion at trial, a plaintiff must establish “beyond controversy every essential element of” his affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), 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) (quotation marks and citation omitted).

         In arriving at its conclusion, the Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.



         A. Summary of Plaintiff’s Complaint

         Plaintiff alleges that on July 8, 2010, he was housed at Kern Valley State Prison. On that date, Plaintiff had just finished his inmate porter duties when he heard a commotion behind him and noticed an incident occurring between two handcuffed inmates and an officer. An alarm sounded, and Plaintiff got down on the ground. C/O Lockard, located in the gun tower, aimed his launcher gun at Plaintiff’s right thigh and shot him with a sponge round. Plaintiff was struck in the front inner right lower thigh area, ripping a large hole in his leg. Plaintiff fell backwards on to the floor, actively bleeding. C/O Lockard called down to C/O Lopez, “Check Gilmore. I shot him. He was trying to get involved.” (ECF No. 12 ¶ 21.) Plaintiff was lying defenseless on the floor, in immense pain, attempting to put pressure on the wound. C/O Lopez walked over to Plaintiff and stood over him, stating “You want to get involved, motherf***er? You’re involved now.” (Id. ¶ 23.) C/O Lopez then sprayed Plaintiff with pepper spray without justification, in his face and up and down his backside. C/O Hightower approached Plaintiff and also began spraying him with pepper spray. Defendants Lopez and Hightower both emptied their pepper spray canisters on Plaintiff.

         B. Statement of Undisputed Facts[1]

12. Plaintiff was housed at Kern Valley State Prison during the incident at issue. (Pl.’s Decl. ¶ 18.)
83. On July 8, 2010, Plaintiff was assigned as an inmate porter and to cell 232 in facility A- Building 8, C-section. ...

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