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Hilson v. Arnett

United States District Court, E.D. California

April 14, 2017

RASHEED HILSON, SR., Plaintiff,
v.
JESSE ARNETT, et al., Defendants.

          ORDER GRANTING REQUEST FOR JUDICIAL NOTICE (ECF NOS. 24) FINDINGS AND RECOMMENDATION TO DENY DEFENDANT ARNETT AND GAMBOA'S PARTIAL MOTION TO DISMISS (ECF NO. 23)

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on the following claims against the following Defendants: (1) an Eighth Amendment excessive force claim against Defendants Arnett, Gamboa, Potzernitz, Flores, and Jane Doe; and (2) an Eighth Amendment failure to protect claim against Defendant Marsh.

         Before the Court are Defendant Gamboa and Arnett's partial motion to dismiss (ECF No. 23) and request for judicial notice (ECF No. 24). Plaintiff filed an opposition (ECF No. 34) and a “stipulation” regarding Defendants' evidence (ECF No. 35). Defendant filed no reply. The matter is submitted. Local Rule 230(l).

         II. Request for Judicial Notice

         Defendants ask the Court to take judicial notice of the following documents from criminal proceedings involving Plaintiff in the Kings County Superior Court: (a) the amended complaint filed on July 31, 2014, and again on March 19, 2015; (b) the transcript of Plaintiff's March 19, 2015 preliminary hearing; (c) the information, filed April 2, 2015; (d) the transcript of Plaintiff's June 17, 2016 plea hearing; (e) the plea of guilty/no contest form, filed June 17, 2016; (f) the felony abstract of judgment, filed July II, 2016; and (g) the case summary/docket. (ECF No. 24.)

         In response, Plaintiff states that he “stipulates” that the documents proffered by Defendants are true and correct copies of court records and that Plaintiff himself wishes to use them as evidence. (ECF No. 35.) Plaintiff agrees that judicial notice is warranted.

         The Court may take judicial notice of court records. United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Defendants' unopposed request for judicial notice will be granted.

         III. Plaintiff's Claims

         Briefly stated, Plaintiff claims that he was improperly denied the use of a wheelchair as an accommodation for his many medical issues. As a result, he had difficulty moving about the prison and was unable to participate fully in prison programming. Also as a result, Defendants subjected him to several assaults.

         Plaintiff's claims against Defendant Arnett and Gamboa may be summarized essentially as follows:

         On August 2, 2013, Plaintiff went “man down” in his cell. Eventually, custody staff, including Arnett, jumped on top of Plaintiff and began to punch, kick and twist Plaintiff's left leg at the ankle trying to break it. Plaintiff was taken to a hospital and received a “favorable diagnosis.” On August 10, 2013, Plaintiff was handcuffed and moved to a new cell. Once in the new cell, Plaintiff brought his hand to the food port to be uncuffed. After one cuff was removed, Plaintiff turned slightly so that the other cuff could be removed. Arnett and Gamboa then pepper sprayed Plaintiff.

         Plaintiff was transported to the medical clinic by Defendants Flores and Potzernitz. En route, Flores and Potzernitz attacked Plaintiff. Gamboa once again administered pepper spray.

         IV. Legal Standard - ...


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