United States District Court, E.D. California
C. DWAYNE GILMORE, Plaintiff,
C. LOCKARD, et al, Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF
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.)
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
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).
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).
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,
Summary of Plaintiff’s Complaint
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.
Statement of Undisputed Facts
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.