United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 102) CLERK TO CLOSE CASE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed pursuant to 42 U.S.C.
§ 1983. This matter proceeds on Plaintiff's Second
Amended Complaint on an Eighth Amendment excessive force
claim against Defendant Correctional Officer
(“CO”) J. Ramirez. Both parties have consented to
the jurisdiction of the undersigned.
pending is Defendant's motion for summary judgment, which
Plaintiff opposes. The motion is fully briefed and ready for
10, 2013, CO Ramirez escorted Plaintiff in handcuffs from the
law library to his cell. During escort, CO Ramirez asked
Plaintiff, “What the fuck is your problem? You have an
attitude with my partner and you're suing
Cacciola.” Plaintiff attempted to defuse the situation
by obeying orders, but CO Ramirez twice tried to push
Plaintiff into a door, injuring Plaintiff's arm and
wrist. Plaintiff saw a nurse for his injury and still has
Legal Standards for Summary Judgment
party may move for summary judgment, and “[t]he [C]ourt
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). 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 absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
party seeking summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal quotation marks omitted).
If the movant will have the burden of proof at trial, it must
demonstrate, with affirmative evidence, that “no
reasonable trier of fact could find other than for the moving
party.” Id. at 984. In contrast, if the
nonmoving party will have the burden of proof at trial,
“the movant can prevail merely by pointing out that
there is an absence of evidence to support the nonmoving
party's case.” Id. (citing
Celotex, 477 U.S. at 323). Once the moving party has
met its burden, the nonmoving party must point to
"specific facts showing that there is a genuine issue
for trial." Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
ruling on a motion for summary judgment, a court does not
make credibility determinations or weigh evidence. See
Liberty Lobby, 477 U.S. at 255. Rather, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Id. Only admissible evidence may be considered in
deciding a motion for summary judgment. Fed.R.Civ.P.
56(c)(2). “Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine
issues of fact and defeat summary judgment.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007).
facts underlying this action occurred while Plaintiff was
housed at California Correctional Institution
(“CCI”) in Tehachapi, California, where Defendant
CO Ramirez was employed as a CCI Correctional Officer. Decl.
of J. Ramirez in Supp. of Def.'s Mot. Summ. J. (ECF No.
102-2) ¶ 1.
10, 2013, CO Ramirez worked as an A-4 Search and Escort
Officer. Ramirez Decl. ¶ 2. That morning, he and CO
Mullins (not a party to this action) escorted Plaintiff from
the law library back to his cell. Id. ¶ 2.
Defendant, CO Mullins placed Plaintiff in handcuffs prior to
the escort, and CO Ramirez then held Plaintiff by the right
bicep in order to begin the escort back to Plaintiff's
cell. Ramirez Decl. ¶ 3. During the escort, Plaintiff
used profanity and loudly complained that his handcuffs were
too tight. Id. ¶ 4. CO Ramirez stopped to
inspect Plaintiff's handcuffs. Id. After
determining that there was sufficient space between the
handcuffs, the officers continued the escort. Id.
During the remainder of the escort, Plaintiff continued to
use profanity to provoke CO Ramirez. Id. ¶ 5.
When Plaintiff was returned to his cell, the handcuffs were
removed. Id. ¶ 6. Following the escort, CO
Ramirez drafted a General Chrono to document Plaintiff's
incendiary behavior, which CO Ramirez construed as an attempt
to instigate an altercation. Id. ¶ 7, Ex. A.
Defendant denies using any force against Plaintiff during
this escort. Id. ¶¶ 6, 8.
Plaintiff, CO Ramirez twice used his body weight to shove
Plaintiff into a door. Sec. Am. Compl. ¶¶ 23-24.
Each time, Plaintiff was able to avoid hitting the door and
avoid falling. Id. As a result of this incident,
Plaintiff claims that he experienced a sharp pain radiating
from his left wrist into his left forearm. Id.
¶ 25. He also claims to have sustained a ...