United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND
DENY IN PART DEFENDANT CROUNSE'S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 92)
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The action proceeds on Plaintiff's Eighth
Amendment excessive force claim against Defendants Brandon
Cope, Borjas Gonzales, Mario Lozano, Howard Smith, and Stan,
and on a Fourteenth Amendment due process claim against
the Court is Defendant Crounse's motion for summary
judgment. (ECF No. 92.) Plaintiff filed an opposition. (ECF
No. 108.) Defendant filed a reply. (ECF No. 111.) The matter
is submitted. Local Rule 230(l).
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); Wash. Mut. Inc. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011). “If
undisputed evidence viewed in the light most favorable to the
prisoner shows a failure to exhaust, a defendant is entitled
to summary judgment under Rule 56.” Albino,
747 F.3d at 1166. If material facts are disputed, summary
judgment should be denied, and the Court should decide
disputed factual questions relevant to exhaustion “in
the same manner a judge rather than a jury decides disputed
factual questions relevant to jurisdiction and venue.”
Id. at 1169-71.
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). In judging the evidence at the
summary judgment stage, the Court may not make credibility
determinations or weigh conflicting evidence, Soremekun
v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007), and it must draw all inferences in the light most
favorable to the nonmoving party, Comite de Jornaleros de
Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
942 (9th Cir. 2011).
claims arise out of a July 13, 2013 incident at California
Correctional Institution. Plaintiff claims that, on that
date, he was released from his cell for Ramadan services when
Defendant Gonzales began to make disparaging remarks toward
him. An altercation occurred between Plaintiff and Defendant
Gonzales. Plaintiff was subdued and handcuffed. Plaintiff
alleges various acts by Defendant Gonzales and others during
the encounter were excessive. Based on these allegations, the
Court has permitted Plaintiff to proceed on an excessive
force claim against Defendants Gonzales, Smith, Cope, Lozano
and Stan. Such claim, however, is limited to Defendants'
actions after Plaintiff was handcuffed.
received a Rules Violation Report (“RVR”) in
relation to this incident. On November 14, 2013, he appeared
before Defendant Crounse for his disciplinary hearing. He
asked Defendant Crounse to call Defendants Gonzales, Smith,
Stan, Cope and Lozano as witnesses. He alleges Defendant
Crounse stated that he would not be calling anyone “as
staff reports gave a full account of the incident.”
Plaintiff pointed out that Defendant Gonzales' report was
missing and was critical as he was the primary officer.
Plaintiff contends he was ignored and subsequently found
guilty without being afforded a meaningful hearing. The Court
has permitted him to proceed on a Fourteenth Amendment claim
against Defendant Crounse based on the denial of his right to
call witnesses at his disciplinary hearing.
Applicable Law Regarding Disciplinary Hearings
Process Clause protects prisoners from being deprived of
liberty without due process of law. Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Under the due
process clause, minimum procedural protections are required
for prison disciplinary proceedings. These include: (1)
written notice of the charges; (2) at least 24 hours between
the time the prisoner receives written notice and the time of
the hearing, so that the prisoner may prepare his defense;
(3) a written statement by the fact finders of the evidence
they rely on and reasons for taking disciplinary action; (4)
the right of the prisoner to call witnesses in his defense,
when permitting him to do so would not be unduly hazardous to
institutional safety or correctional goals; and (5) legal
assistance to the prisoner where the prisoner is illiterate
or the issues presented are legally complex. Id. ...