United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF
Charles Albert Neely is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
§ 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff
consented to the jurisdiction of the United States Magistrate
Judge on February 17, 2015. Defendant has not consented or
declined to United States Magistrate Judge jurisdiction;
therefore, this action was referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
action is proceeding against Defendant D. Ruffin for use of
excessive force in violation of the Eighth Amendment to the
United States Constitution.
12, 2016, Defendant filed a motion to dismiss the second
amended complaint for failure to state a cognizable claim
under Federal Rule of Civil Procedure 12(b)(6). On September
2, 2016, the undersigned recommended that Defendant's
motion to dismiss be denied. The Findings and Recommendations
were adopted in full on October 11, 2016, and Defendant's
motion to dismiss was denied.
November 11, 2016, Defendant filed an answer to the
complaint, as well as a motion for summary judgment. (ECF
Nos. 27, 28.) Plaintiff filed an opposition on November 23,
2016, and Defendant filed a reply on November 30, 2016.
Pursuant to Local Rule 230(1), the motion is deemed submitted
for review without oral argument.
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
resolving cross-motions for summary judgment, the Court must
consider each party's evidence. Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).
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. Sec. Litig., 627 F.3d 376,
387 (9th Cir. 2010).
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984 (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 this recommendation, the Court has 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.
Summary of Plaintiff's Complaint
16, 2014, Defendant D. Ruffin invited Plaintiff in to his
office to discuss a scheduling conflict. Defendant became
physically and verbally agitated by pushing an office chair
abruptly out of the way to then aggressively charging
Plaintiff. While Defendant was screaming expletives and
threats to include “I ought to beat your ass and teach
you a lesson in respect, ” Plaintiff then attempted to
leave the office. Defendant told Plaintiff “no, ”
and grabbed him from behind. Defendant then said “what
you are going to do is get your fucking ass against the wall
and don't fucking move.” At which time Defendant,
who was holding Plaintiff from behind, pushed Plaintiff out
of the door and across the hall onto the wall. Defendant
continued to scream expletives and called for back-up.
Defendant cuffed Plaintiff and ordered him to “the
hole” to cool off for a couple of hours. Plaintiff
never resisted and complied with every order and did not need
to cool off.
Statement of Undisputed Facts
all times relevant to this suit, Charles Albert Neely (CDC
No. AE6507) was an inmate in the custody of the California
Department of Corrections and Rehabilitation (CDCR) at Taft
Modified Community Correctional Facility (TMCCF) in Taft,
California. (Second Amended Complaint (SAC) at 1, 3-4.)
Defendant Ruffin was a ...