United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner incarcerated at the California Substance
Abuse Treatment Facility (CSATF) in Corcoran, under the
authority of the California Department of Corrections and
Rehabilitation (CDCR). Plaintiff proceeds pro se with this
civil rights action against sole defendant California State
Prison Sacramento (CSP-SAC) Correctional Officer J. McCowan,
on claims of excessive force and deliberate indifference to
plaintiff's serious medical needs. This action proceeds
on plaintiff's original complaint. See ECF No.
before the court are the parties' cross-motions for
summary judgment. See ECF Nos. 54, 71. These matters
are referred to the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 302(c). For the reasons that follow, this court
recommends that defendant's motion be granted in part and
denied in part, and plaintiff's motion be denied in full.
As a result, this case should proceed to trial.
filed his complaint on January 25, 2015. ECF No. 1. The
court granted plaintiff's application to proceed in forma
pauperis and screened the complaint pursuant to 28 U.S.C.
§ 1915A. The court accorded plaintiff the option of
proceeding on his original complaint against sole defendant
McCowan, or filing a First Amended Complaint in an attempt to
state cognizable claims against additional defendants. ECF
No. 10. Plaintiff elected to proceed on his original
complaint and submitted the information necessary for the
U.S. Marshal to serve process on defendant McCowan. Defendant
answered the complaint on December 29, 2015. ECF No. 20.
complaint, plaintiff alleges that on the afternoon of August
10, 2012, he entered CSP-SAC's Facility C medical clinic
to obtain his 3:00 p.m. insulin injection. Plaintiff
exchanged an Islamic greeting with another inmate who was in
a holding cell. Correctional Officer Snipes told plaintiff
that he was not to talk with the other inmate and to
“take it down the hall.” ECF No. 1 at ¶ 9.
Plaintiff objected to Snipes' “disrespectful tone
and manner, ” and they exchanged words. Id. As
plaintiff proceeded to take a seat in the clinic, defendant
McCowan rushed in and told plaintiff to “stand up turn
around face the wall and cuff-up.” Id. at
¶ 14. Plaintiff told McCowan that he had a medical
chrono authorizing only frontal waist restraints but
defendant insisted that plaintiff cuff-up behind his back and
then “fastwalked” plaintiff out of the clinic
toward a holding cage, initially out of view of other
officers and cameras and “raised the arms up midway
passed [sic] plaintiff's back. Beyond their designed
capacity.” Id. at ¶¶ 17, 18.
Defendant placed plaintiff in a holding cage “on the
farthest side of the sally port” and removed his cuffs.
Defendant ignored plaintiff's complaints of pain in his
left shoulder and wrists but another officer escorted
plaintiff to the clinic where he was examined and a Medical
Report of Injury completed. Id. at ¶¶
alleges that defendant McCowan used excessive force against
him and was deliberately indifferent to his serious medical
needs by failing to adhere to plaintiff's frontal waist
restraints chrono and by preventing plaintiff from receiving
his insulin injection. Id. at ¶ 45.
filed his motion for summary judgment on March 6, 2017. ECF
No. 54. Following extensions of time to resolve newly raised
discovery matters and to insure that plaintiff had access to
his legal materials, plaintiff filed his opposition and
cross-motion for summary judgment on July 24, 2017. ECF No.
71. Defendant replied to plaintiff's opposition, ECF No.
72, and filed an opposition to plaintiff's motion for
summary judgment, ECF No. 77. Plaintiff filed an unauthorized
surreply, ECF No. 73 and a reply, ECF No. 75, and sought to
submit additional evidence, ECF Nos. 76, 79, 81. By order
filed December 20, 2017, the undersigned overruled
defendant's objections and authorized the court's
consideration of all plaintiff's evidence and briefing.
ECF No. 83.
Legal Standards for Motions for Summary Judgment
judgment is appropriate when the moving party “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). Under summary judgment practice, the
moving party “initially bears the burden of proving the
absence of a genuine issue of material fact.”
Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In
re Oracle Corp. Securities Litigation), 627 F.3d 376,
387 (9th Cir. 2010) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). The moving party may
accomplish this by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admission, interrogatory answers, or
other materials” or by showing that such materials
“do not establish the absence or presence of a genuine
dispute, or that the adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P. 56
the non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the nonmoving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325); see also
Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. See Celotex, 477 U.S. at
322. “[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. In such a circumstance, summary judgment should
be granted, “so long as whatever is before the district
court demonstrates that the standard for entry of summary
judgment ... is satisfied.” Id. at 323.
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). In attempting to establish the
existence of this factual dispute, the opposing party may not
rely upon the allegations or denials of its pleadings but is
required to tender evidence of specific facts in the form of
affidavits, and/or admissible discovery material, in support
of its contention that the dispute exists. See
Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586
n.11. Moreover, “[a] [p]laintiff's verified
complaint may be considered as an affidavit in opposition to
summary judgment if it is based on personal knowledge and
sets forth specific facts admissible in evidence.”
Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir.
2000) (en banc).
opposing party must demonstrate that the fact in contention
is material, i.e., a fact that might affect the
outcome of the suit under the governing law, see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the
dispute is genuine, i.e., the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party, see Wool v. Tandem Computers, Inc., 818 F.2d
1433, 1436 (9th Cir. 1987).
endeavor to establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., 809 F.2d at 631.
Thus, the “purpose of summary judgment is to
‘pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.'”
Matsushita, 475 U.S. at 587 (citations omitted).
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
reasonable inferences supported by the evidence in favor of
the non-moving party.” Walls v. Central Costa
County Transit Authority, 653 F.3d 963, 966 (9th Cir.
2011) (per curiam). It is the opposing party's obligation
to produce a factual predicate from which the inference may
be drawn. See Richards v. Nielsen Freight Lines, 602
F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd,
810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a
genuine issue, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the
material facts. … Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.'” Matsushita, 475 U.S. at 587
applying these rules, district courts must “construe
liberally motion papers and pleadings filed by pro se inmates
and … avoid applying summary judgment rules
strictly.” Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010). However, “[if] a party fails to
properly support an assertion of fact or fails to properly
address another party's assertion of fact, as required by
Rule 56(c), the court may . . . consider the fact undisputed
for purposes of the motion . . . .” Fed.R.Civ.P.
otherwise noted, the following facts are undisputed by the
parties or as determined by the court. Material factual
disputes are noted as appropriate.
Plaintiff Timothy Baker is an inmate in the custody of the
California Department of Corrections and Rehabilitation
At all times relevant to the allegations in this case,
plaintiff was housed at California State Prison Sacramento
(CSP-SAC) in Facility C.
At all relevant times, defendant McCowan was a correctional
officer at CSP-SAC.
During third watch on August 10, 2012, defendant was assigned
to act as a Health Care Access Escort Officer in Facility C;
this was not his regularly assigned post.
Health Care Access Escort Officers provide, inter alia,
escorts of prisoners to and from facility medical clinics.
When inmates must be escorted to or from a medical
appointment, escorting officers are directed to establish
whether the inmate has any restrictions prior to the escort.
These restrictions include but are not limited to waist
On the date of the incident, plaintiff had a permanent
“waist restraints” chrono. See ECF No.
71 at 13, 94 (Sept. 2011- Sept. 2012 chrono); see
also id. at 14 (Feb. 2016 chrono (same)); but see
id. at 95 (Nov. 2013 chrono (temporary “frontal or
Access to CDCR services, programs and activities by disabled
inmates is controlled by the Armstrong Remedial
which provides in pertinent part, see ECF No. 71 at
Inmates who have a disability that prevents application of
restraint equipment in the ordinarily prescribed manner shall
be afforded reasonable accommodation, under the direction of
the supervisor in charge. Mechanical restraints shall be
applied to ensure effective application while reasonably
accommodating the inmate's disability.
On August 10, 2012, plaintiff was escorted to the Facility C
medical clinic by officers other than defendant to obtain his
afternoon insulin injection.
Defendant avers that he heard yelling between plaintiff and a
female officer, so he entered the clinic, handcuffed
plaintiff and escorted him to Holding Cage #1. McCowan Decl.
¶¶ 8, 10.
The parties dispute whether defendant knew plaintiff had a
waist restraints chrono. Plaintiff contends that, in addition
to plaintiff telling defendant, it should have been clear to
defendant that plaintiff was disabled as he “was
clearly walking with a cane and had a vest identifying him as
 mobility impaired as disabled, ” and he carried his
medical accommodations chronos at all times. ECF No. 76 at 5.
Defendant avers (McCowan Decl. ¶ 8):
Common practice would be for me to determine whether Baker
had any restrictions for his escort. I do not recall Baker
telling me that he had a waist restraint chrono.
Additionally, I do not recall Baker showing me a waist
Plaintiff has submitted three August 2012 declarations by
inmate James Davis who avers he witnessed defendant enter the
clinic “at a high rate of speed” and go directly
to plaintiff, whom he “grabbed and spun around”
then forced plaintiff's hands behind his back. Davis
avers that this happened without provocation or resistance by
plaintiff, whose complaints of pain were ignored by defendant
as he forcefully moved plaintiff to a holding cage. Davis
avers that plaintiff told defendant he could not cuff up
behind his back and had a medical chrono for waist restraints
only. See ECF No. 71 at 33-7.
The parties dispute the nature of their interaction
thereafter. Defendant avers that although plaintiff
“continually questioned why he was being escorted,
” defendant “handcuffed and escorted Baker
without incident . . . out of the Facility C medical clinic
to Holding Cage # 1 outside of the Watch Office on Facility
C.” (McCowan Decl. ¶¶ 8, 10.) Defendant
McCowan avers that, in his “experience, where
necessary, even limited mobility inmates can still be
escorted with proper bodyweight support, despite being
handcuffed behind the back.” (McCowan Decl. ¶ 9.)
contrast, plaintiff testified at his deposition that defendant
“fast walked” him out of the clinic, holding
plaintiff's right arm, and “veered off to the left
out of plain view of everybody and then raised my arms. I
felt a pop. I immediately complained about it. I said my arm
is messed up. Please get me some medical attention.”
(Pltf. Depo. at 38:4-8.) Plaintiff testified that the
incident took place outside camera range, “towards the
law library, ” after defendant said, “you feel
froggy, jump.” (Id. at 37:17, 23-5.)
Defendant responds (McCowan Decl. ¶¶ 11-3):
At no time did I escort Baker to an unmonitored area of the
prison. Additionally, because of the need for security in the
prison, there are no unmonitored areas of the facility. At no
time during my involvement in this incident did I pull inmate
Baker's hands up to his shoulders, inf1icting pain or
causing a “pop.” Had an incident happened, I am
obligated to prepare an incident report describing the
situation. Notably, a report was not prepared in this matter.
The parties dispute whether the alleged incident occurred
outside the view of prison cameras and other correctional
staff. Plaintiff testified that defendant took plaintiff out
of view of all other staff members and cameras. Pltf. Depo.
at 37-39 (citing Pltf. Exs., ECF No. 71 at
44-50). Defendant contends “[t]here is no
area on Facility C medical, or near the Program Office, that
is unmonitored.” DUF 19 (citing Steele Decl., Exs.
Sometime thereafter, Sergeant Andes escorted plaintiff from
the holding cage back to the clinic, where plaintiff was