United States District Court, N.D. California
BRUCE L. FULLER, Plaintiff,
C. RIPPETOE, et al., Defendants.
ORDER ADDRESSING PENDING MOTIONS; REOPENING CASE; AND
REFERRING CASE TO FEDERAL PRO BONO PROJECT RE: DKT. NOS. 87,
HAYWOOD S. GILLIAM, JR. United States District Judge.
an inmate at Kern Valley State Prison, filed the instant
pro se civil rights action pursuant to 42 U.S.C.
§ 1983 alleging that when he was previously housed at
Pelican Bay State Prison (“PBSP”), correctional
officials used excessive force on him in violation of the
Eighth Amendment. On August 8, 2016, the Court granted in
part and denied in part Defendants' summary judgment
motion and referred this case to Judge Vadas for settlement
proceedings. Dkt. No. 84. On November 9, 2016, Judge Vadas
reported that the parties were unable to reach an agreement
at that time. Dkt. No. 95.
pending before the Court are (1) Defendants' motion for
leave to file motion for reconsideration under Local Rule 7-9
(Docket No. 87), and Plaintiff's motion for
reconsideration of the Court's order to appoint counsel
(Docket No. 96).
Defendants' Motion for Reconsideration
Northern District of California, Local Rule 7-9 allows for
the filing of motions for reconsideration with respect to
interlocutory orders made in a case prior to the entry of
final judgment. See Civil L.R. 7-9(a). The moving
party must specifically show: (1) that at the time of the
motion for leave, a material difference in fact or law exists
from that which was presented to the court before entry of
the interlocutory order for which the reconsideration is
sought, and that in the exercise of reasonable diligence the
party applying for reconsideration did not know such fact or
law at the time of the interlocutory order; or (2) the
emergence of new material facts or a change of law occurring
after the time of such order; or (3) a manifest failure by
the court to consider material facts or dispositive legal
arguments which were presented to the court before such
interlocutory order. See Civil L.R. 7-9(b).
otherwise ordered by the Court, no response need be filed to
a motion under the Local Rule. See Civil L.R.
7-9(c). Because Defendants have demonstrated that the Court
failed to consider certain material facts, the Court will
GRANT Defendants' request for leave to file a motion for
reconsideration and will address the motion for
reconsideration without ordering a response from Plaintiff.
argue that there was a manifest failure by the Court to
consider material facts and dispositive legal arguments that
require entry of judgment in their favor. Specifically,
Defendants argue the following. First, Defendants argue that
the Court should have entered judgment in favor of Officers
Rippetoe and Schaad because these officers deployed the first
two pepper-spray grenades which were necessary to restore
discipline and order. Second, Defendants argue that the Court
failed to address video footage that contradicted the
Court's conclusion that the third grenade may have been
thrown before Plaintiff stood up and that conclusively
demonstrated that the third pepper-spray grenade was deployed
after Plaintiff and another inmate stood up from the ground.
Third, Defendants argue that the Court incorrectly applied a
reasonableness standard in analyzing the Eighth Amendment
claim. Fourth, Defendants argue that in denying qualified
immunity, the Court erroneously employed a standard has been
rejected by the U.S. Supreme Court and the Ninth Circuit. The
Court addresses each argument in turn.
Officers Rippetoe and Schaad
Court agrees that summary judgment should be entered in favor
of Officers Rippetoe and Schaad. It is undisputed that the
first two grenades were necessary to restore discipline and
order. Dkt. No. 84 at 10. Whether Defendants engaged in
excessive force turns on when and why Defendants deployed the
third grenade. It is undisputed that Officers Rippetoe and
Schaad did not deploy either the third or fourth grenade, and
were only responsible for deployment of the first two
grenades. The Court will therefore GRANT Defendants'
motion for reconsideration with respect to Officers Rippetoe
and Schaad. Summary judgment is GRANTED in favor of Officers
Rippetoe and Schaad, and Officers Rippetoe and Schaad are
DISMISSED from this action with prejudice.
argue that the Court failed to consider footage from camera
#9, which they argue conclusively demonstrates that the third
and fourth grenade were both deployed after Plaintiff ran
away from the scene. Defendants further argue that because
the fourth grenade was properly deployed to restore order and
discipline, the third grenade was also therefore properly
deployed to restore order and discipline. Dkt. No. 87 at 10.
In deciding the summary judgment motion, the Court reviewed
all the evidence in the record, including footage from camera
#9. In the footage from camera #9, the smoke from the
grenades obscures the view of the inmates, and makes it
difficult to identify when new grenades are deployed. Because
the Court must draw all reasonable inferences in favor of
Plaintiff and because the video footage does not
“clearly contradict the version of the story told by
[Plaintiff], ” Scott v. Harris, 550 U.S. 372,
378 (2007) (finding that videotape clearly contradicted
respondent's version of events where respondent claimed
he drove safely and followed the rules of the road but
videotape showed respondent running red lights, driving at
“shockingly fast” speeds, swerving around cars,
and crossing double-yellow line), it is inappropriate to
grant summary judgment in favor of Defendants based on the
record before the Court, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (evidence of the
nonmovant is “to be believed, and all justifiable
inferences are to be drawn in his favor.”).
Eighth Amendment Standard for ...