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Gallardo v. Sherman

United States District Court, E.D. California

June 28, 2019

ANGEL LUIS GALLARDO, Plaintiff,
v.
STU SHERMAN, et al, Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [ECFNOS. 56, 61]

         Plaintiff Angel Luis Gallardo is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants Reyes and Martin's motion for summary judgment, filed February 28, 2019, and Defendant Garcia's motion for summary judgment, filed March 5, 2019.

         I. RELEVANT BACKGROUND

         This action is proceeding against Defendants M. Garcia, J. Reyes, and D. Martin for deliberate indifference to a serious medical need and intention infliction of emotional distress.[1]

         On November 27, 2017, Defendants Martin and Reyes filed an answer to the operative complaint. On November 29, 2017, Defendant Garcia filed an answer to the operative complaint.

         On December 5, 2017, the Court issued the discovery and scheduling order.

         On July 18, 2018, after an unsuccessful settlement conference, the Court issued an amended discovery and scheduling order.

         As previously stated, on February 28, 2019, Defendants Reyes and Martin filed a motion for summary judgment. On March 5, 2019, Defendant Garcia filed a motion for summary judgment. Plaintiff filed an opposition to both motions on June 24, 2019, and Defendants filed a reply on June 27, 2OI9.[2]

         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 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 at 942 (quotation marks and citation omitted).

         III. DISCUSSION

         A. Summary of Plaintiffs Complaint

         On November 13, 2015, while housed at the California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California, Plaintiff and his cellmate were sprayed with pepper spray by M. Garcia ("Garcia"), Correctional Officers J. Reyes, and D. Martin due to an in cell incident. The officers then took Plaintiff and his cellmate to the showers to be decontaminated. After decontamination, Sergeant Garcia told Correctional Officers Martin and Reyes to place Plaintiff back in his original cell.

         Plaintiff told Sergeant Garcia and Officer Reyes that he could not go back to his cell as he suffers from asthma. Nurse Bracamonte came by and Plaintiff had him clearly explain his medical condition to Sergeant Garcia, and Correctional Officers Martin and Reyes. Even after Nurse Bracamonte's explanation, Sergeant Garcia ordered Correctional Officers Reyes and Martin to place Plaintiff back in his cell.

         After about fifteen minutes, Plaintiff was having trouble breathing and began wheezing. Defendants told Plaintiff he would be ok since he has a rescue inhaler in the cell. It was then Plaintiff informed Defendants the rescue inhaler was not in the cell. This prompted the Defendants to begin looking for the inhaler. In the meantime, Nurse Bracamonte arrived at Plaintiffs cell and informed Plaintiff he spoke with Sergeant Garcia on his behalf asking for Plaintiff to be removed from the cell, nevertheless Plaintiff was still not allowed out of his cell.

         B. Statement of Undisputed Facts[3]

         1. At all times relevant to this action, Plaintiff was an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) housed at the California Substance Abuse Treatment Facility (SATF) in Corcoran, California. (Second Am. Compl, ECF No. 17 at 3.)

         2. On November 13, 2015, Plaintiff and his cellmate engaged in a fight inside their cell. (Deposition of Plaintiff ("Dep.") at 23:1-3, Ex. A to Declaration of Lucas L. Hennes.)

         3. To end the fight, correctional officers used pepper spray on Plaintiff and his cellmate. (ECF No. 17 at 3, Dep. at 23:4-14.)

         4. Plaintiff and his cellmate did not comply with orders to stop fighting until three cans of pepper spray had been disbursed into his cell. (Dep. at 28:6-15.)

         5. After Plaintiff and his cellmate complied with orders to stop fighting and submitted to handcuffs, Defendants Garcia and Reyes took Plaintiff to the showers to be ...


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