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Gutierrez v. Gutierrez

United States District Court, E.D. California

June 15, 2017

G. J. GUTIERREZ, Plaintiff,
v.
A. GUTIERREZ, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, (ECF NO. 112)

         Plaintiff 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.

         Currently before the Court is Defendant A. Gutierrez's motion for summary judgment, filed February 24, 2017 (ECF No. 112).

         I. RELEVANT HISTORY

         This 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. 41.)

         On 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.)

         On 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.)

         Pursuant to Local Rule 230(1), Defendant's motion for summary judgment is deemed submitted for review without oral argument.

         II. LEGAL STANDARD

         Any 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. 2010).

         In 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)).

         In 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).

         In 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, and appropriate.

         III. DISCUSSION

         A. Summary of Plaintiff's Complaint[1]

         In his 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 position.
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.)

         B. Disputed and Undisputed Material Facts[2]

         1. Parties

         The 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.

         Defendant 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.

         2. Stabbing of Plaintiff on January 14, 2012 and Use of Chemical Agents

         Defendant 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.

         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.

         Defendant 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.

         Both 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.

         Defendant 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.

         Plaintiff 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.

         3. Defendant's Discharge of ...


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