United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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. ECF Nos. 164, 165, 166.
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.
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.
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
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.
Motions for Summary Judgment
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.
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.
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).
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.
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 (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
Legal Standards for Summary Judgment
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).
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
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.
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).
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).
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
Objections to Plaintiff's Evidence
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
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).
have objected to several items of evidence submitted by
plaintiff on the grounds that they are inadmissible.
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
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.
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
Prior Lawsuits Against 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.
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
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.
A (ECF No. 174 at 35):
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,  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.
B (ECF No. 174 at 38):
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. 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.
C (ECF No. 135 at 43-52; ECF No. 174 at
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(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.
D (ECF No. 174 at 51-71): Exhibit
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
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.
G (ECF No. 174 at 92-100):
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
H (ECF No. 174 at 103-120):
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.
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
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; 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 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.
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.
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. ...