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Johnson v. Sandy

United States District Court, E.D. California

April 26, 2017

JOSEPH JOHNSON, Plaintiff,
v.
E. SANDY, et al., Defendants.

          FINDINGS & RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Currently before the court are defendants' fully briefed motions for summary judgment.[1] ECF Nos. 164, 165, 166.

         I. Procedural History

         This case proceeds on plaintiff's first amended complaint. ECF No. 22. Upon screening, the complaint was found to state claims under the Eighth Amendment, First Amendment, and state tort law against defendants Austin, Hutcheson, Swarthout, Lahey, Lavagnino, Lavergne, Shadday, Cobian, DeStefano, Sandy, and Cruzen. ECF No. 29 at 2. After the close of discovery, defendants filed motions for summary judgment. ECF Nos. 105, 106, 124. However, the motions were vacated due to outstanding discovery disputes. ECF No. 155 at 7. After the discovery matters were resolved, defendants were given an opportunity to re-file and re-serve their original motions for summary judgment. ECF No. 163. Plaintiff's request to re-file his motion for summary judgment, which was originally denied as untimely, was denied. ECF No. 173. Defendants' proceeded to re-file their motions, which are now before the court. ECF Nos. 164, 165, 166.

         II. Plaintiff's Allegations

         In his verified, first amended complaint, plaintiff alleges that defendants Austin, Hutcheson, Lavagnino, Lavergne, Cobian, DeStefano, Sandy, and Cruzen violated his rights under the Eighth Amendment by using excessive force against him and/or failing to protect him, and that Sandy, Cruzen, Cobian, Lavagnino, Lavergne, and Austin are also liable for assault and battery and intentional infliction of emotional distress. ECF No. 22 at 7-10, 13-14. Specifically, he alleges that after he filed a grievance against Sandy, she ordered Cobian, Lavergne, Cruzen, and Lavagnino to move him to a more restrictive cell and that when he resisted the move she encouraged them to assault plaintiff, which they proceeded to do. Id. at 4-10. During the assault, defendant Austin was pointing a gun at plaintiff from the control tower and plaintiff feared that his life was in danger. Id. at 8. Sometime after the assault, defendants Hutcheson and DeStefano escorted plaintiff to and from the infirmary. Id. at 10.

         Plaintiff also alleges that defendants Lahey and Shadday were deliberately indifferent to his serious medical needs when they refused to treat the injuries he sustained during the assault. Id.

         Finally, he asserts that Austin, Swarthout, Lavagnino, Lavergne, Cobian, Sandy, and Cruzen retaliated against him for filing grievances. Id. at 9, 12-14. Swarthout allegedly initiated a retaliatory transfer, while the other defendants fabricated disciplinary reports against plaintiff. Id.

         III. Motions for Summary Judgment

         A. Defendants' Arguments

         Austin, Hutcheson, Swarthout, Lahey, Lavagnino, Lavergne, Shadday, Cobian, and DeStefano are represented by the Attorney General's Office and have filed a motion for summary judgment. ECF No. 166. Lavergne, Lavagnino, Cobian, and Austin move for summary judgment on the grounds that they did not use excessive force on plaintiff. ECF No. 166-1 at 25-27. They do not move for summary judgment on the retaliation or state tort claims. Hutcheson and DeStefano move for summary judgment on the grounds that they did not fail to protect plaintiff and that he did not exhaust his administrative remedies as to the claims against them. Id. at 27-29, 37-39. Swarthout asserts that he did not retaliate against plaintiff and that plaintiff did not exhaust his administrative remedies. Id. at 29-30, 37-39. Lahey and Shadday argue that they should be granted summary judgment because they were not deliberately indifferent to plaintiff's medical needs and that he did not exhaust his administrative remedies against them. Id. at 31-32, 38-39. All defendants argue that they are entitled to qualified immunity. Id. at 33-34.

         Sandy and Cruzen are each represented by separate counsel and have filed their own, separate motions for summary judgment. Sandy argues that she is entitled to summary judgment because she did not violate plaintiff's rights under the Eighth and First Amendments, did not commit any torts against plaintiff, and is alternatively entitled to qualified immunity. ECF No. 164-2 at 9-22. Cruzen moves for summary judgment on the grounds that he did not use excessive force, retaliate, or commit any torts against plaintiff; that the court should decline jurisdiction over the state tort claims; and that he is alternatively entitled to qualified immunity. ECF No. 165-2 at 5-10.

         B. Plaintiff's Response

         At the outset, the court notes that plaintiff has largely failed to comply with Federal Rule of Civil Procedure 56(c)(1)(A), which requires that “a party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” Plaintiff has also failed to file a separate document disputing defendants' statement of undisputed facts that fully complies with Local Rule 260(b).

         However, it is well-established that the pleadings of pro se litigants are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). However, the unrepresented prisoners' choice to proceed without counsel “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes upon a litigant, ” such as “limited access to legal materials” as well as “sources of proof.” Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986). Inmate litigants, therefore, should not be held to a standard of “strict literalness” with respect to the requirements of the summary judgment rule. Id.

         The court is mindful of the Ninth Circuit's more overarching caution in this context, as noted above, that district courts are to “construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court considers the record before it in its entirety despite plaintiff's failure to be in strict compliance with the applicable rules. Specifically, the court notes that although plaintiff did not properly respond to defendants' statements of fact in support of their renewed motions for summary judgment, he submitted proper responses to the statements supporting the originally filed motions[2] (ECF No. 134 at 8-29; ECF No. 134-1 at 5-9), and the court will consider plaintiff's responses to the originally filed statements of fact, and defendants' replies as appropriate, in determining whether a fact is in dispute. However, only those assertions which have evidentiary support in the record will be considered.

         IV. Legal Standards for Summary Judgment

         Summary judgment is appropriate when the moving party “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). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should “be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” Anderson, 447 U.S. at 248.

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, [the court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Id. at 587 (quoting First Nat'l Bank, 391 U.S. at 289).

         On March 16 and 17, 2016, defendants served plaintiff with notice of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 164-1, 165-1, 166; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (movant may provide notice) (en banc).

         V. Objections to Plaintiff's Evidence

         Rule 56(c)(4) of the Federal Rules of Civil Procedure states that affidavits and declarations submitted for or against a summary judgment motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” In other words, “only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (citations omitted). However, “[a]t the summary judgment stage, [the court does] not focus on the admissibility of the evidence's form. [It] instead focus[es] on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citations omitted); Aholelei v. Haw. Dep't of Pub. Safety, 220 F. App'x 670, 672 (9th Cir. 2007) (district court abused its discretion in not considering plaintiff's evidence at summary judgment “which consisted primarily of litigation and administrative documents involving another prisoner and letters from other prisoners” and could be made admissible at trial). In other words, the court can consider the evidence if its contents could be presented in an admissible form at trial. Fraser, 342 F.3d at 1037.

         Inadmissible hearsay cannot be considered on motion for summary judgment. Anheuser-Busch v. Natural Beverage Distrib., 69 F.3d 337, 345 n.4 (9th Cir. 1995); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 851 (9th Cir. 1990). Statements in affidavits that are legal conclusions, speculative assertions, or hearsay do not satisfy the standards of personal knowledge, admissibility, and competence required by 56(c)(4). Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1980); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

         Defendants have objected to several items of evidence submitted by plaintiff on the grounds that they are inadmissible.

         A. Plaintiff's Declaration

         Defendant Cruzen argues that plaintiff's declaration in support of his opposition to the motion for summary judgment is not cognizable evidence because it is unsworn (ECF No. 175 at 3), but conveniently overlooks the fact that his own declaration in support of his motion for summary judgment is similarly unsworn (ECF No. 165-5). If the court is to disregard plaintiff's declaration as inadmissible, then Cruzen's declaration should be considered equally inadmissible. However, these deficiencies have been previously addressed and Cruzen's objection will be overruled.

         During briefing on defendants' original motions for summary judgment, it came to the court's attention that a number of the declarations that had been submitted by the parties, including plaintiff's and Cruzen's, were unsworn, and the parties were given an opportunity to cure the defects. ECF No. 136 at 2. Cruzen opted to submit an amended declaration that was signed under penalty of perjury (ECF No. 137), while plaintiff filed a sworn declaration verifying the contents of his unsworn declaration (ECF No. 138), which was originally filed as a motion for summary judgment before the court construed it as a supplemental opposition (ECF Nos. 135, 136). Accordingly, admissible forms of both declarations exist in the court's record and will be considered as appropriate. Moreover, even if admissible forms of the declarations did not exist, the court would have considered them to the extent the parties could have made their contents admissible. Fraser, 342 F.3d at 1037.

         However, the court recognizes that plaintiff's declaration not only expands upon the allegations in the complaint, but includes some facts that are materially different from those alleged in the complaint. Accordingly, the court will not consider any facts contained in plaintiff's declaration that contradict or are inconsistent with the facts alleged in the complaint or testified to by plaintiff during his deposition.

         B. Prior Lawsuits Against Defendants

         Defendants Sandy and Lahey both object to plaintiff's submission of previous lawsuits against them as inadmissible character evidence. ECF No. 176 at 10; ECF No. 177-1 at 2-3. To the extent the lawsuits are being submitted in an attempt to establish defendants' character and that they acted in accordance with that character, the objections will be sustained and the evidence will not be considered. Fed.R.Evid. 404(a). To the extent plaintiff is attempting to use the lawsuits for some other, permissible purpose, such as establishing a habit or routine practice under Federal Rule of Evidence 406, the court need not rule on their admissibility at this time because plaintiff's testimony is sufficient to establish his version of events, which the court must take as true at this stage.

         C. Hearsay Statements

         Defendants Austin, Hutcheson, Swarthout, Lahey, Lavagnino, Lavergne, Shadday, Cobian, and DeStefano identify several statements in plaintiff's opposition which they contend are inadmissible hearsay. ECF No. 177-1 at 2. The statements allegedly made by defendants Sandy and Lahey, offered by plaintiff, are statements made by an opposing party and therefore are not hearsay. Fed.R.Evid. 801(d)(2). Defendants' hearsay objections to these statements will be overruled. However, the objection to the statements allegedly made by the x-ray technician and Sgt. Best, both non-parties, will be sustained because they do not fall within a hearsay exception and there is no evidence that plaintiff would be able to make these statements admissible at trial.

         D. Plaintiff's Exhibits

         Defendants Austin, Hutcheson, Swarthout, Lahey, Lavagnino, Lavergne, Shadday, Cobian, and DeStefano also object to a number of exhibits submitted by plaintiff. ECF No. 177-1 at 3-6.

         Exhibit A (ECF No. 174 at 35):

         Plaintiff submits what appears to be a California Department of Corrections and Rehabilitation (CDCR) memorandum dated February 17, 2004, with the subject “ZERO TOLERANCE REGARDING THE ‘CODE OF SILENCE.'” Defendants object to the memorandum as unauthenticated and lacking foundation and irrelevant. ECF No. 177-1 at 3. The objections regarding authentication and foundation for the exhibit are overruled. Defendants do not actually challenge the authenticity of the memorandum and review of CDCR's website reveals that the contents of the memorandum are a part of the cadet handbook, [3] demonstrating that plaintiff would likely be able to authenticate the memorandum at trial. However, plaintiff presents the memorandum in an attempt to attack defendants' credibility (ECF No. 174 at 7) and credibility determinations are the function of the jury, not of a judge on a motion for summary judgment, Anderson, 477 U.S. at 255. Accordingly, the exhibit will not be considered and the court declines to rule on the relevance or probative value of the exhibit at this time.

         Exhibit B (ECF No. 174 at 38):

         Exhibit B consists of an inmate request form dated June 20, 2012, regarding the alleged harassment by defendant Sandy; the request appears to have been responded to by Sandy. Defendants object to the exhibit as unauthenticated, irrelevant, and inadmissible hearsay. ECF No. 177-1 at 4. Defendants' objections are largely overruled. Defendants do not challenge the authenticity of the document.[4] Moreover, plaintiff would be capable of authenticating the document at trial. Although not dealing directly with the alleged assault, the form documents the alleged interactions between plaintiff and Sandy that he claims led up to the June 22, 2012 incident. Finally, plaintiff's own statements within the form are consistent with his sworn statements and could be made admissible. The statements he attributes to Sandy are not hearsay because they are statements made by an opposing party. Fed.R.Evid. 801(d)(2). However, the statements plaintiff attributes to non-defendants Sgt. Best and C.O. Kelly will be disregarded as inadmissible hearsay and irrelevant.

         Exhibit C (ECF No. 135 at 43-52; ECF No. 174 at 41-48):[5]

         In Exhibit C, plaintiff submits medical records showing that he signed consent forms for heat risk and psychotropic medication, was receiving mental health services, and was being treated for anxiety and depression. Defendants object to the records as being unauthenticated, inadmissible hearsay unless authenticated, and irrelevant. ECF No. 177-1 at 4. They also argue that an expert opinion is necessary to interpret them. Id. These objections are overruled. Defendants do not challenge the authenticity of the records, and plaintiff would likely be capable of authenticating them at trial. Assuming authentication, the documents are not hearsay. Furthermore, the records themselves are fairly straightforward and do not require an expert to interpret them, especially for the purpose for which plaintiff presents them. Finally, though they are ultimately not material to disposition of the motions for summary judgment, the records are relevant. It is undisputed that plaintiff told defendants that he could not be moved because of the fact that he was taking a heat medication and that he was receiving mental health treatment. Defendants' Statement of Undisputed Facts[6](DSUF) (ECF No. 166-2) ¶ 7; ECF No. 134 at 31. Assuming they could be authenticated, the records demonstrate that plaintiff was in fact receiving mental health treatment and was on heat medication, though they do not, by themselves, establish that he was unable to be housed in the building he was being moved to or that any of the defendants knew he could not be housed there.

         Exhibit D (ECF No. 174 at 51-71): Exhibit

         D is made up of various appeals forms and responses and inmate requests related to the alleged assault on June 22, 2012. Defendants object to the documents as unauthenticated. ECF No. 177-1 at 4. Defendants' objection is overruled. Two-thirds of the documents (ECF No. 174 at 54-65, 70-71) have been included as attachments to the declaration of V. Estrella (ECF No. 166-12 at 42-46, 54-57, 65; ECF No. 166-15 at 4-6, 8). As for the remaining documents (ECF No. 174 at 51-53, 66-69), there is no actual challenge to their authenticity and plaintiff would be able to authenticate them at trial.

         Exhibit F (ECF No. 174 at 78-89): Plaintiff submits a letter that was apparently written by his wife and sent to the ombudsman's office, as well as several letters written by plaintiff to various individuals and a receipt of correspondence from the ombudsman's office. Defendants object on the grounds that the various correspondence are unauthenticated, are not signed under penalty of perjury or accompanied by a supporting declaration, contain hearsay, are irrelevant, and in some instances appear to be incomplete. ECF No. 177-1 at 4-5. Defendants' objections to the letter written by plaintiff's wife will be sustained to the extent that its contents are largely irrelevant and the letter contains only second-hand information and inadmissible hearsay that does not appear to fall within any exception. As for the letters written by plaintiff, the objections are overruled to the extent they contain information that plaintiff could testify to, any alleged statements by defendants are not hearsay, and any responses noted on the letters would likely be able to be made admissible at trial.

         Exhibit G (ECF No. 174 at 92-100):

         In Exhibit G, plaintiff submits portions of the rules violation report issued as a result of the June 22, 2012 incident. Defendants object on the ground that it is incomplete, has not been authenticated in its partial form, and contains inadmissible hearsay. These objections are overruled. Defendants do not actually dispute the authenticity of the documents and plaintiff would be able to authenticate them at trial.

         Exhibit H (ECF No. 174 at 103-120):

         Exhibit H is comprised of various health care service requests and health care appeals. Defendants object on the grounds that the documents are not authenticated, are irrelevant, contain inadmissible hearsay, have no proof of actual submission, and may be unjustifiably redacted. ECF No. 177-1. Defendants' objections are overruled. Since plaintiff authored each of these documents, they are easily authenticated at trial. They are relevant in that they document plaintiff's complaints about his alleged injuries, which he would be able to testify to and thus their contents can be made admissible. Several of the documents also appear to have been signed as received by correctional staff. ECF No. 174 at 104, 107, 111-12. Finally, as to the large black areas on a number of the documents, plaintiff attached his original forms to his supplemental response to defendants' original motion for summary judgment (ECF No. 135) and the court has inspected them. The forms with the large blacked out areas are the gold inmate copies of the multi-part forms and the black areas are a part of the form, not a redaction added by plaintiff. VI. Undisputed Material Facts The following facts are undisputed except as noted.

         At all times relevant to the complaint, plaintiff was an inmate in the custody of the CDCR and housed at the California State Prison (CSP)-Solano, where defendants were all employed in various capacities.

         On June 22, 2012, plaintiff was housed in Building 10. Sandy's Undisputed Statement of Facts (SSUF) (ECF No. 164-3) ¶ 3; ECF No. 181 at 2-3, ¶¶ 3, 10. On the morning of June 22, 2012, Sandy was the lieutenant in charge of Building 10 and ordered Cruzen and Lavagnino to escort plaintiff to her office. SSUF ¶ 4;[7] Cruzen Decl. (ECF No. 165-5) at 2, ¶¶ 5-6; DSUF ¶ 4; ECF No. 181 at 2, ¶¶ 2, 4. Cruzen and Lavagnino went to plaintiff's cell and instructed him to submit to waist chains so that he could be taken to see Sandy, but plaintiff refused, saying that he was in fear for his life and that he wanted to see his psychiatrist. SSUF ¶¶ 6-7; Cruzen Decl. at 2, ¶ 8; DSUF ¶ 5; ECF No. 181 at 2, ¶ 5. According to plaintiff, Cobian was also present. ECF No. 22 at 6, ¶ 22. Plaintiff ultimately agreed to submit to waist restraints and exit his cell. SSUF ¶ 8; Cruzen Decl. at 2, ¶ 8; DSUF ¶ 5; ECF No. 181 at 2, ¶ 7. Defendant Cruzen[8] began escorting plaintiff to Sandy's office, but he refused to continue the escort when they reached the mental health staff office. SSUF ¶¶ 9-10; Cruzen Decl. at 2, ¶ 9; DSUF ¶ 6; ECF No. 181 at 3, ¶ 8.

         Under defendants' version of events, after plaintiff refused to continue the escort, defendant Sandy responded and counseled him until he agreed to voluntarily continue the escort and walked from Building 10 to Building 9 on his own. SSUF ¶¶ 11-13; Cruzen Decl. at 2, ¶¶ 10-11; DSUF ¶¶ 7-8. Defendant Lavergne, who had witnessed plaintiff's “belligerent conduct, ” decided to follow along behind the escort, which consisted of defendants Cruzen, Lavagnino, and Sandy. DSUF ¶ 10. Cobian responded when saw plaintiff sitting on the floor in Building 9. DSUF ¶ 16; Cobian Decl. (ECF No. 166-7) at 2, ¶¶ 6-7. Plaintiff asserts that when he got to the medical office, Sandy, Cobian, and Lavagnino appeared and that he asked to speak with his case worker because he was in fear for his life. ECF No. 22 at 7, ¶¶ 27-28. Sandy responded by telling the other defendants to “‘bring his ass on, I'm gonna show him who runs shit here!'” Id. ¶ 29. Cruzen, Cobian, and Lavagnino then proceeded to drag and push plaintiff to Building 9 where Lavernge was waiting for them. Id. ¶ 30.

         The parties agree on a number of events that took place after they entered Building 9. However, they disagree on some of the circumstances leading to the events and the order in which some events occurred. It is undisputed that once in Building 9, Sandy directed Austin to open cell 119 and plaintiff refused to enter the cell and instead sat on the floor. SSUF ¶¶ 16-18; Cruzen Decl. at 3, ¶¶ 12-13; DSUF ¶¶ 13; ECF No. 22 at 7-8, ¶¶ 31, 36; ECF No. 134 at 10. It is also undisputed that Sandy ordered Cruzen, Lavagnino, Lavernge, and Cobian to remove plaintiff's boots and that plaintiff wrapped his legs around a pole in front of cell 119. SSUF ¶¶ 24, 31; Cruzen Decl. at 3, ¶¶ 15-17; DSUF ¶¶ 16, 18; ECF No. 22 at 7, ¶ 32; ECF No. 181 at 3, ¶ 11. At some point during the incident, Cruzen had his knee on plaintiff's chest, holding plaintiff down. Cruzen Decl. at 3, ¶ 20; ECF No. ...


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