United States District Court, E.D. California
G. J. GUTIERREZ, Plaintiff,
A. GUTIERREZ, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, (ECF NO. 112)
G. J. Gutierrez is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42
U.S.C. § 1983.
before the Court is Defendant A. Gutierrez's motion for
summary judgment, filed February 24, 2017 (ECF No. 112).
action proceeds on Plaintiff's complaint filed March 22,
2013, alleging excessive force and failure to protect against
Defendant A. Gutierrez in violation of the Eighth Amendment.
(ECF No. 1.) After Defendant's motion to dismiss was
denied, Defendant filed an answer to Plaintiff's
complaint on November 19, 2014. (ECF No. 40.) A discovery and
scheduling order was issued on November 21, 2014. (ECF No.
February 24, 2017, following the resolution of various
discovery disputes and extensions of the dispositive motion
deadline, Defendant filed the subject motion for summary
judgment. (ECF No. 112.) Plaintiff then requested, and was
granted, an extension of time to file an opposition to
Defendant's motion for summary judgment. (ECF No. 116.)
April 7, 2017, Plaintiff filed his opposition to
Defendant's motion for summary judgment. (ECF No. 118.)
On April 17, 2017, Defendant filed a reply to Plaintiff's
opposition to the motion for summary judgment. (ECF No. 120.)
to Local Rule 230(1), Defendant's motion for summary
judgment is deemed submitted for review without oral
party may move for summary judgment, and the Court 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)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). 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
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch. Dist,
237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v.
Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.
resolving cross-motions for summary judgment, the Court must
consider each party's evidence. Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).
Defendants do not bear the burden of proof at trial; thus, in
moving for summary judgment, they need only prove an absence
of evidence to support Plaintiffs case. In re Oracle
Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
“If the moving party meets its initial burden, the
non-moving party must set forth, by affidavit or as otherwise
provided in Rule 56, ‘specific facts showing that there
is a genuine issue for trial.'” Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, (1986)).
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984 (quotation
marks and citation omitted), and it must draw all inferences
in the light most favorable to the nonmoving party and
determine whether a genuine issue of material fact precludes
entry of judgment, Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir.
2011) (quotation marks and citation omitted).
ruling on this motion, the Court has carefully reviewed and
considered all arguments, points and authorities,
declarations, exhibits, statements of undisputed facts and
responses thereto, if any, objections, and other papers filed
by the parties. Omission of reference to an argument,
document, paper, or objection is not to be construed to the
effect that this Court did not consider the argument,
document, paper, or objection. This Court thoroughly reviewed
and considered the evidence it deemed admissible, material,
Summary of Plaintiff's Complaint
complaint, Plaintiff alleges that on January 14, 2012, there
was a prison disturbance involving rival gangs. Thirteen
inmates associated with the Fresno Bulldog gang
“viciously, and for no apparent reason, ”
attacked seven Southern Hispanic inmates. Plaintiff
specifically alleges that:
Plaintiff (a Southern Hispanic affiliate), was merely
watching television when he was grabbed by the back of his
shirt and stabbed and slashed repeatedly by a Fresno Bulldog
affiliated prisoner. Naturally, Plaintiff attempted to defend
himself and fight off his attackers as best he could.
Plaintiff was bleeding profusely. Blood covered his entire
face, head, and upper torso area.
It was clear and plainly obvious to any human being that
Plaintiff was the victim in this incident. After shots were
fired and chemical agents deployed, all combatants (including
Plaintiff) stopped fighting and lie on the floor in a prone
Suddenly, and without warning, the Fresno Bulldog affiliated
prisoners got back up and attacked the Southern Hispanic
affiliated prisoner again.
[Defendant] Gutierrez, who was part of the second responders,
joined the already set skirmish line, witnessed the Fresno
Bulldog affiliated prisoners get up from the floor to resume
their attack on the Southern Hispanic affiliated prisoners
that included Plaintiff.
[Defendant] Gutierrez sadistically and maliciously aimed his
40mm launcher at Plaintiffs already slashed and bloody head
and fired striking him directly above the left eye.
The Fresno Bulldog affiliated prisoners then struck Plaintiff
several more times in the face before breaking off their
attack and resuming a prone position.
As Plaintiff was enroute to the hospital for treatment to his
life-threatening wounds, Gutierrez approached Plaintiff and,
in a low tone of voice, stated to Plaintiff, “I told
you not to f**k with my people. The next time it'll be
worse (the term ‘my people' refers to the Fresno
Bulldog affiliated prisoners).”
(Compl. ¶¶ 8-16.)
Disputed and Undisputed Material Facts
parties agree that at the time of the events at issue,
Plaintiff was an inmate in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”) at Pleasant Valley State Prison
(“PVSP”). Defendant was employed by CDCR at PVSP
as a Search and Escort Officer.
contends that he was assigned to work at Facility D at the
time of the events at issue. Plaintiff contends that on
various occasions, Defendant had worked at Facility C, where
Plaintiff was housed, and although he never spoke to
Defendant, he recognized Defendant's face.
Stabbing of Plaintiff on January 14, 2012 and Use of
contends, for the purpose of this motion, that on January 14,
2012 at approximately 7:37 p.m., a riot erupted between two
disruptive prison groups-the Fresno Bulldogs and the Southern
Hispanics-in the day room of Building 2 on Facility C, at
PVSP. The riot began when a Fresno Bulldog affiliated inmate
grabbed Plaintiff by the back of his shirt and repeatedly
stabbed and slashed Plaintiff.
now denies that he is a member of the Southern Hispanic gang,
and instead alleges that he lived in Southern California
prior to his incarceration, but is non-affiliated. Plaintiff
also denies the characterization of the events on January 14,
2012 as a “riot.” Plaintiff agrees, however, that
at about 7:00 p.m. he was sitting on a bench watching
television when he was stabbed and slashed on both sides of
his face by a Fresno Bulldog gang member. Plaintiff asserts
that he and six other people were victims attacked by the
Fresno Bulldog gang members.
contends that Plaintiff fought with his attacker, whereas
Plaintiff contends that he attempted to defend himself while
he was stabbed and slashed by attackers. Plaintiff alleges
that he was bleeding profusely, and could not hear any
commands to get down by prison officials.
parties agree that chemical agents (Oleoresin Capsicum
(“OC”) Instantaneous Blast Grenades) were
deployed and 40 mm Projectile Launchers were used, causing
all prisoners to cease any attacks or fighting. Plaintiff
alleges that once his attackers got into a prone position and
ceased attacking him, he also assumed a prone position.
contends that within approximately thirty seconds, a Fresno
Bulldog affiliated inmate got back up and resumed fighting,
causing all previously-involved combatants, including
Plaintiff, to re-engage in the riot. Defendant further
contends that at this time, second and third responders came
to the Facility C dayroom, and Defendant was among the second
responders who reported to Building 2 at this time.
disputes some of these allegations. Plaintiff contends that
after the inmates had gotten into prone positions, there was
sufficient time for the prison officials to
“subdue” the thirteen assailant-inmates,
particularly those who had makeshift weapons. Plaintiff
contends that there were ten to twelve prison guards armed
with batons, OC spray, grenades, and mechanical restraints.
Plaintiff further contends he was on the ground long enough
to determine that his bleeding did not slow, his face and
head began pulsating, and he felt burning sensations on his
wounds. Plaintiff then suddenly felt someone kicking him in
his facial and head area, and realized that he was again
being attacked. Plaintiff was compelled to get off the ground
and defend himself, but his legs felt wobbly, he felt weak,
and blood spewed from his body.
Defendant's Discharge of ...