United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF
No. 51.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14)
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
William Cortinas (“Plaintiff”) is a state
prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42
U.S.C. § 1983. This case now proceeds with the original
Complaint, filed on January 30, 2017, against Correctional
Officer (C/O) J. Scalia, and C/O M. Huerta
(“Defendants”) for use of excessive force in
violation of the Eighth Amendment. (ECF No. 1.)
24, 2019, Defendants filed a motion for summary judgment on
the ground that the undisputed facts show that
Plaintiff's claims are barred under the favorable
termination doctrine in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). (ECF No. 51.) On August 7, 2019, Plaintiff
filed an opposition to the motion. (ECF Nos. 55-56.) On
August 13, 2019, Defendants filed a reply. (ECF No. 57.) The
motion is deemed submitted. Local Rule 230(l).
reasons set forth below, the court concludes that
Plaintiff's case is not barred by Heck and
recommends that Defendants' motion for summary judgment
SUMMARY JUDGMENT STANDARD
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).
does not bear the burden of proof at trial and in moving for
summary judgment, he only needs to prove an absence of
evidence to support Plaintiff's case. In re Oracle
Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548 (1986)). If Defendants meet their initial
burden, the burden then shifts to Plaintiff “to
designate specific facts demonstrating the existence of
genuine issues for trial.” In re Oracle
Corp., 627 F.3d at 387 (citing Celotex
Corp., 477 U.S. at 323). This requires Plaintiff to
“show more than the mere existence of a scintilla of
evidence.” Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
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) (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 936, 942 (9th Cir. 2011) (quotation
marks and citation omitted). The court determines only
whether there is a genuine issue for trial. Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation
marks and citations omitted).
arriving at these findings and recommendations, the court
carefully reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed
facts and responses thereto, if any, objections, and other
papers filed by the parties. Omission of reference to an
argument, document, paper, or objection is not to be
construed to the effect that this court did not consider the
argument, document, paper, or objection. This court
thoroughly reviewed and considered the evidence it deemed
admissible, material, and appropriate.
PLAINTIFF'S ALLEGATIONS AT ISSUE IN THE
is presently incarcerated at California State
Prison-Sacramento in Represa, California. The events at issue
in the Complaint allegedly occurred at Corcoran State Prison
in Corcoran, California, when Plaintiff was incarcerated
there in the custody of the California Department of
Corrections and Rehabilitation (CDCR).
allegations of excessive force follow:
December 31, 2014, at approximately 10:00 a.m., C/O Huerta
ordered Plaintiff to exit his cell so his cable box could be
fixed. C/O Huerta handcuffed Plaintiff per policy, then
escorted him roughly 20 feet to the shower. The handcuffs
were left on. After about 10 minutes, C/O Huerta and C/O
Scalia ordered Plaintiff to back out of the shower. C/O
Huerta placed a “controlled arm bar hold[, g]ripping
both my thumbs.” (ECF No. 1 at 4.) As Plaintiff
approached his cell's open door, C/O Scalia and C/O
Huerta slammed Plaintiff into the wall. C/O Huerta applied
his estimated 280 pounds into Plaintiff's back, while C/O
Scalia pulled Plaintiff's right [leg] out from under him.
C/O Huerta landed on Plaintiff's back as Plaintiff was
slammed onto the concrete floor. C/O Scalia grabbed
Plaintiff's hair and beard and slammed his face into the
floor by lifting up Plaintiff's head by the hair. C/O
Scalia then placed his knee on Plaintiff's neck and
pounded Plaintiff's head into the concrete floor 10 times
as he said, “You like this.” (ECF No. 1 at 5.)
After the tenth time Plaintiff lost consciousness. He had a
lemon-size knot on his left temple, a black eye, dizziness,
ears ringing for two days, and vomiting. Only due to the
control tower's alertness was an alarm sounded. For two
weeks Plaintiff was denied medical treatment. He still
suffers back and neck pain.
requests monetary damages and injunctive relief.
is necessary to show sufficient harm for purposes of the
Cruel and Unusual Punishments Clause [of the Eighth
Amendment] depends upon the claim at issue . . . .”
Hudson v. McMillian, 503 U.S. 1, 8 (1992).
“The objective component of an Eighth Amendment claim
is . . . contextual and responsive to contemporary standards
of decency.” Id. (internal quotation marks and
citations omitted). The malicious and sadistic use of force
to cause harm always violates contemporary standards of
decency, regardless of whether or not significant injury is
evident. Id. at 9; see also Oliver v.
Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth
Amendment excessive force standard examines de
minimis uses of force, not de minimis
injuries)). However, not “every malevolent touch by a
prison guard gives rise to a federal cause of action.”
Id. at 9.“The Eighth Amendment's
prohibition of cruel and unusual punishments necessarily
excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not
of a sort ‘repugnant to the conscience of
mankind.” Id. at 9-10 (internal quotations
marks and citations omitted).
prison officials stand accused of using excessive physical
force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause
harm.” Id. at 7. “In determining whether
the use of force was wanton and unnecessary, it may also be
proper to evaluate the need for application of force, the
relationship between that need and the amount of force used,
the threat reasonably perceived by the responsible officials,
and any efforts made to temper the severity of a forceful
response.” Id. (internal quotation marks and
citations omitted). “The absence of serious injury is .
. . relevant to the Eighth Amendment inquiry, but does not
end it.” Id.
Heck v. Humphrey - Favorable Termination
state prisoner cannot use a § 1983 action to challenge
the ‘fact or duration of his confinement,' because
such an action lies at the ‘core of habeas
corpus.'” Simpson v. Thomas, 528 F.3d 685,
693 (9th Cir. 2008) (quoting Preiser v. Rodriguez,
411 U.S. 475, 489 (1973)). Thus, where a § 1983 action
seeking damages alleges constitutional violations that would
necessarily imply the invalidity of a conviction or sentence,
the prisoner must first establish that the underlying
sentence or conviction has already been invalidated on
appeal, by a habeas petition, or terminated in his favor via
some other similar proceeding. Heck, 512 U.S. at
438-37. This “favorable termination” rule applies
to prison disciplinary proceedings, if those proceedings
resulted in the loss of good-time or behavior credits.
Balisok, 520 U.S. at 646-48 (holding that claim for
monetary and declaratory relief challenging validity of
procedures used to deprive prisoner of good-time credits is
not cognizable under § 1983); see also Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005) (explaining that
“a state prisoner's § 1983 action is barred
(absent prior invalidation) no matter the relief sought
(damages or equitable relief), no matter the target of the
prisoner's suit (state conduct leading to conviction or
internal prison proceedings) if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration” (emphasis omitted)). Stated another way, a
§ 1983 claim is barred if the “plaintiff could
prevail only by negating ‘an element of the offense of
which he has been convicted.'” Cunningham v.
Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (citing
Heck, 512 U.S. at 487 n. 6). However, when the
§ 1983 claim does not necessarily implicate the
underlying disciplinary action (or criminal conviction), it
may proceed. See Muhammad v. Close, 540 U.S. 749,
general rule in the Ninth Circuit is that a party cannot
create an issue of fact by an affidavit contradicting his
prior deposition testimony.'” Yeager v.
Bowlin, 693 F.3d 1076, 1081 (9th Cir. 2012) (citing
Van Asdale v. International Game Technology, 577
F.3d at 998 (quoting Kennedy v. Allied Mut. Ins.
Co., 952 F.2d 262, 266 (9th Cir. 1991)). This sham
affidavit rule prevents “a party who has been examined
at length on deposition” from “rais[ing] an issue
of fact simply by submitting an affidavit contradicting his
own prior testimony, ” which “would greatly
diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” Yeager,
693 F.3d at 1081 (quoting Kennedy, 952 F.2d at 266
(internal quotation marks omitted); see also Van
Asdale, 577 F.3d at 998 (stating that some form of the
sham affidavit rule is necessary to maintain the principle
that summary judgment is an integral part of the federal
rules)). But the sham affidavit rule “‘should be
applied with caution'” because it is in tension
with the principle that the court is not to make credibility
determinations when granting or denying summary judgment.
Van Asdale, 577 F.3d at 998 (quoting Sch. Dist.
No. 1J v. AC and S, Inc., 5 F.3d 1255, 1264 (9th
Cir.1993)). In order to trigger the sham affidavit rule, the
district court must make a factual determination that the
contradiction is a sham, and the “inconsistency between
a party's deposition testimony and subsequent affidavit
must be clear and unambiguous to justify striking the
affidavit.” Van Asdale, 557 F.3d at 998-99.
facts, or new facts, accompanied by a reasonable explanation,
should not ordinarily lead to the striking of a declaration
as a sham. Yeager, 693 F.3d at 1081 (citing see
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (stating the
general rule that parties may explain or attempt to resolve
contradictions with an explanation that is sufficiently
reasonable)). '"[T]he non-moving party is not
precluded from elaborating upon, explaining or clarifying
prior testimony elicited by opposing counsel on deposition
and minor inconsistencies that result from an honest
discrepancy, a mistake, or newly discovered evidence afford
no basis for excluding an opposition affidavit.'"
(Yeager, 693 F.3d at 1081 (quoting Van Asdale, 577
F.3d at 999 (quoting Messick v. Horizon Indus., 62
F.3d 1227, 1231 (9th Cir. 1995) (internal quotation marks
DEFENDANTS' STATEMENT OF ...