United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in this action
brought pursuant to 42 U.S.C. § 1983. Defendant seeks
summary judgment in his favor, arguing that the undisputed
facts show that he did not subject plaintiff to excessive
force, that plaintiff suffered no injury, and that he should
be afforded qualified immunity. ECF No. 21. For the following
reasons, the motion must be denied.
The Facts Presented by the Parties
case arises from an altercation between plaintiff, a state
prisoner, and defendant Lucero, a correctional officer, on a
bus transporting inmates from one prison to another. The
parties agree on many facts, but dispute each other with
regard to their personal conduct before and during the
altercation. Such disputes will be noted below.
23, 2014, plaintiff was being transported from California
State Prison, Sacramento to Deuel Vocational Institute. ECF
No. 21-1, Def.'s Facts ISO Mot. for Summ. J. (hereinafter
“DUF”) No. 3; ECF No. 1, Pl.'s Compl., at
Defendant was working as a transportation officer for that
transport, along with Sergeant Gunderson (who plaintiff
refers to as “Granderson”) and another officer.
DUF No. 5; ECF No. 1 at 4-5. The transport made a scheduled
stop at the California Medical Facility (“CMF”)
in the afternoon. DUF No. 7; ECF No. 1 at 4. According to
defendant, as the bus arrived at CMF, plaintiff rudely yelled
to the officers that he wanted some water. DUF No. 7.
Plaintiff claims that he politely requested water. ECF No. 1
the bus stopped, Gunderson and the other officer left to
unload some inmates and property. DUF No. 8. Defendant began
to distribute water in Dixie cups to the remaining inmates.
Id. Nos. 8-10; ECF No. 1 at 4. Plaintiff was sitting
at the front of the bus and was the first to receive water.
DUF No. 10. According to defendant, plaintiff then said,
“I want another one.” Id. According to
plaintiff, he was extremely thirsty and thus “asked
politely if I could be provided with a little more because of
the miniscule amount [defendant] gave me.” ECF No. 1 at
4. Defendant refused and told plaintiff to sit back down. DUF
No. 10; ECF No. 1 at 4.
claims that, when Lucero was done handing out water and was
locking the gate that separates the inmate section of the bus
from the place where the officers sit, plaintiff told him he
was “fake.” ECF No. 1 at 4. Plaintiff alleges
that Lucero then reopened the gate, “stormed”
toward plaintiff and began aggressively shaking and pushing
his upper body while his hands, waist, and ankles were
shackled. Id. at 4-5. According to plaintiff, Lucero
then left the bus to speak to Gunderson, who took plaintiff
off the bus, gave him water “to his heart's
content, ” and had the nurse at CMF examine him.
Id. at 5.
to defendant, when plaintiff returned to his seat on the bus
after receiving water, he glared at defendant. DUF No. 11.
When defendant finished giving water to the inmates,
plaintiff again asked for more and, again, defendant refused.
Id. Defendant claims that plaintiff then called him
a “motherfucker” and said, “bitch, it
ain't your water.” Id. Plaintiff was
“loud and disruptive, and his derogatory comments were
continuous despite Officer Lucero's admonitions to stop
swearing.” Id. Defendant claims that he then
“stepped up” to plaintiff, informed him he had
already received his water, and “used his right hand to
hold the collar of Inmate Stribling's state-issued white
cloth jumpsuit” and “placed my left hand behind
his head for two to three seconds.” Id. No.
12. Defendant declares that he did not strike, hit, or shake
plaintiff in any way and that he did not intend to harm
plaintiff but rather to prevent him from becoming more
disruptive and to restore order. DUF No. 27. Defendant was
the only officer on the bus and he did not want the situation
to escalate. Id.
Gunderson declares that plaintiff admitted to him that he had
called defendant a “motherfucker” and a
“bitch” and stated that it was
“bullshit” that he did not get more water. DUF
No. 18. According to Gunderson, plaintiff was not upset or
animated, and he refused medical care, stating that nothing
had happened. DUF Nos. 19-20.
parties do not dispute that plaintiff was left at a
neighboring institution (California State Prison - Solano) to
take a different transport to his ultimate destination later
that night. DUF No. 21; ECF No. 1 at 5. According to
Gunderson, when plaintiff found out that he would not
complete the transport, he became loud and unruly and stated,
“I'm going to tell them what really
happened.” DUF No. 22. Gunderson understood this
statement to be a threat that plaintiff would lie because he
was not allowed to get back on the bus at Solano.
parties do not dispute that plaintiff suffered no physical
injuries whatsoever from the altercation. DUF Nos. 20, 24,
25, 31, 32, 33; ECF No. 21-2 at 45 (plaintiff admitting no
physical injuries in response to discovery); ECF No. 21-2 at
15 (plaintiff testifying in deposition that he suffered no
The Motion for Summary Judgment
argues that the undisputed facts show that he did not subject
plaintiff to excessive force, that plaintiff suffered no
injury, and that he should be afforded qualified immunity.
For the reasons that follow, the undersigned finds that
summary judgment should be denied.