United States District Court, E.D. California
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
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.
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).
Request for Judicial Notice
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.)
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.
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.
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
claims against Defendant Arnett and Gamboa may be summarized
essentially as follows:
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.
was transported to the medical clinic by Defendants Flores
and Potzernitz. En route, Flores and Potzernitz attacked
Plaintiff. Gamboa once again administered pepper spray.
Legal Standard - ...