United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT RE: DKT. NO. 27
ILLSTON UNITED STATES DISTRICT JUDGE.
pro se prisoner's civil rights action under 42
U.S.C. § 1983, Richard Lance Reynolds claims that
correctional officer Merenda violated Reynolds' Eighth
Amendment rights. Merenda now moves for partial summary
judgment on the merits of Reynolds' claim and on the
defense of qualified immunity. Reynolds does not oppose the
motion. For the reasons discussed below, Merenda's motion
for partial summary judgment will be granted. The case will
be referred to the Pro Se Prisoner Mediation
alleges that Merenda used excessive force on two occasions:
(1) during efforts to handcuff Reynolds in the medical area
and (2) in Merenda's office, moments after the
handcuffing. Only Merenda's actions surrounding
Reynolds' handcuffing are at issue in the pending motion.
Therefore, only facts related to that incident are described
below. Viewed in the light most favorable to Reynolds,
evidence shows the following events occurred while Reynolds
was at the Correctional Training Facility in Soledad:
April 5, 2016, an alarm sounded while Reynolds was exiting
the bathroom at the Facility “D” Yard Clinic.
Docket No. 1 at 3. After exiting the bathroom, Reynolds was
instructed to sit down on the clinic bench. Id. As
Reynolds was attempting to comply with these instructions,
Merenda yelled at Reynolds: “‘Hey[, ] don't
you know you are suppose [sic] to sit down when the alarm is
sounding, you stupid Mother Fucker?'”
Id. At this point, Reynolds apparently was
seated, but after hearing Merenda's comment, Reynolds
“jumped up on [his] feet” again and said to
Merenda: “Hey, you know what, fuck you, you fucking
cock sucker.” Docket No. 27-2 at 15. Reynolds continued
to yell at Merenda: “I was in the fucking bathroom,
fucking pissing when that fucking alarm went off.”
Id. Reynolds stated at his deposition that he
“didn't hold [his] lip” and “let
[Merenda] have it” for cursing at him. Id. at
response to Reynolds' comments and actions, Merenda told
Reynolds to put his arms against the wall. Docket No. 1 at 3.
Reynolds extended his left arm straight up on the wall.
However, Reynolds could only extend his right arm about 90
degrees away from his body and told Merenda that
“‘this arm doesn't go up any more. It's
fucking titanium.'” Docket No. 27-2 at 18; see
also Docket No. 1 at 3. (Although Reynolds states in his
complaint his left arm had limited mobility, he testified at
his deposition that the problem arm was actually his right
arm.) Merenda did not accept Reynolds' claim and
attempted to pull Reynolds' right arm up the wall to
match the left arm's position. Docket No. 27-2 at 18-19.
As Merenda began to move Reynolds' right arm “maybe
three [or] four inches” up the wall, Reynolds yelled
“it won't go up, [my arm]'s fucking
titanium.” Id. at 20-21. Merenda stopped
moving Reynolds right arm immediately after Reynolds yelled
out. Id. at 22. However, the movement of
Reynolds' arm was enough to cause him “severe and
extreme pain.” Docket No. 1 at 3; see also
Docket No. 27-2 at 24. The pain lasted three to five seconds.
Docket No. 27-2 at 26. Merenda then moved both of
Reynolds' arms behind Reynolds' back and pushed him
through a door. Id. at 22. This action also caused
Reynolds discomfort, but Reynolds did not mention it to
Merenda. Id. at 24. Reynolds was not physically
injured as a result of these actions.
outside, Reynolds was handcuffed. Reynolds believes he was
handcuffed by correctional officer Gomez, apparently at
Merenda's request. Id. at 23 (“I'm
pretty sure Gomez gets involved and he's the one that
handcuffed me . . . .”; id. at 25 (“Q.
Do you remember who it was who put the handcuffs on? A.
I'm almost sure it was Gomez because he is the C.O. that
went . . . with [Merenda].”). After being handcuffed,
Reynolds was led to Merenda's office. (As noted earlier,
Reynolds contends excessive force was used on him in the
office also, but Merenda has not moved for summary judgment
on that claim.)
relevant time, Reynolds had a titanium shoulder replacement
and a titanium rod in his upper arm. Docket No. 27-2 at 11.
There is no evidence that having a titanium shoulder
replacement or titanium rod necessarily limits a person's
range of motion. There also is no evidence that Reynolds had
anything visible (such as a brace) that would have suggested
to Merenda that Reynolds' range of motion was limited.
judgment is proper where the pleadings, discovery, and
affidavits show that there is “no genuine dispute as to
any material fact and [that] the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
court will grant summary judgment “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 . . .
since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders
all other facts immaterial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A fact is material
if it might affect the outcome of the suit under governing
law, and a dispute about a material fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
the moving party bears the initial burden of identifying
those portions of the record which demonstrate the absence of
a genuine issue of material fact. The burden then shifts to
the nonmoving party to “go beyond the pleadings and by
[his or her] own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,'
designate ‘specific facts showing that there is a
genuine issue for trial.'” Celotex, 477
U.S. at 324 (citations omitted).
verified complaint may be used as an opposing affidavit under
Rule 56, as long as it is based on personal knowledge and
sets forth specific facts admissible in evidence. See
Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11
(9th Cir. 1995) (treating plaintiff's verified complaint
as opposing affidavit where, even though verification not in
conformity with 28 U.S.C. § 1746, plaintiff stated under
penalty of perjury that contents were true and correct, and
allegations were not based purely on his belief but on his
personal knowledge). Here, Reynolds' complaint and
amendment thereto (Docket Nos. 1 and 13) were signed under
penalty of perjury and the facts in them are considered as
evidence for purposes of deciding the motion.
court's function on a summary judgment motion is not to
make credibility determinations nor to weigh conflicting
evidence with respect to a disputed material fact. See
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The
evidence must be viewed in the light most favorable to the
nonmoving party, and the inferences ...