Farr v. Paramo

          ORDER (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND (2) TO SHOW CAUSE WHY CLAIMS AGAINST DEFENDANT STOUT SHOULD NOT BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) (ECF NO. 73)

          Hon. Janis L. Sammartino, United States District Judge

         Currently before the Court is a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Hernandez, Ramrakha, and Barnard^[1](“MSJ,” ECF No. 73), as well as Plaintiff James Emmett Farr’s Opposition (“Opp’n,” ECF No. 92) and Defendants’ Reply (“Reply,” ECF No. 95). For the reasons explained below, the Court GRANTS Defendants’ Motion for Summary Judgment and ORDERS Plaintiff TO SHOW CAUSE no later than thirty (30) days from the date this Order is electronically docketed why the claims against Defendant Stout should not be dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 4(m).

         BACKGROUND

         I. Procedural Background

         On May 27, 2016, Plaintiff filed a Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983, alleging constitutional violations by Defendants Paramo, Hernandez, Fink, Ramrakha, Amaro, Barnard, Ramirez, Savala, Soto, Stout, and Wall. See ECF No. 1 at 1, 8.^[2] On January 13, 2017, the Court granted Plaintiff’s request for the United States Marshall Service (“USMS”) to effect service of his Complaint. See ECF No. 11. To date, Defendant Stout has not been properly served; consequently, he has not appeared in this action. See ECF Nos. 19, 48.

         On March 29, 2017, Defendants Hernandez, Fink, Barnard, Amaro, Ramirez, Paramo, Ramrakha, and Savala moved to dismiss portions of Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 30. On August 18, 2017, Magistrate Judge Dembin issued a Report and Recommendation in which he recommended dismissal of (1) all Eighth Amendment claims against Defendants Amarao and Fink; (2) the Fourteenth Amendment, First Amendment retaliation, and generalized conspiracy claims as to all Defendants; (3) all claims against Defendant Paramo; and (4) the Eighth Amendment failure to protect claims as to all Defendants. See ECF No. 35. On December 18, 2017, this Court adopted this Report and Recommendation in its entirety. See ECF No. 44.

         Plaintiff later requested, and was granted, leave to file an amended complaint. See ECF Nos. 46, 52. Plaintiff was to file his amended complaint no later than April 5, 2018. See ECF No. 52. That date has long since passed and Plaintiff chose not to file an amended pleading. The original Complaint filed by Plaintiff therefore remains the operative pleading.

         On April 19, 2018, Defendants Soto and Wall filed a Motion to Dismiss the claim against them pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 55. Magistrate Judge Dembin issued a Report and Recommendation in which he recommended that their motion be granted and all claims against them be dismissed with prejudice. See ECF No. 57. The Court adopted this recommendation on October 17, 2018, and dismissed Defendants Soto and Wall from this action.

         The remaining Defendants who have been served with the Plaintiff’s Complaint- Defendants Barnard, Hernandez, and Ramrakha-filed an Answer to Plaintiff’s sole surviving claim for excessive force in violation of the Eighth Amendment. See ECF No. 59. On July 26, 2019, Defendants Barnard, Hernandez, and Ramrakha filed the instant Motion for Summary Judgment. See ECF No. 73. The Court issued the required notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1998). See ECF No. 74. Plaintiff was informed that he had until September 9, 2019, to file an Opposition, id.; however, Plaintiff later filed a request seeking an extension, see ECF No. 82, which the Court granted. See ECF No. 86.

         II. Plaintiff’s Allegations^[3]

         Plaintiff alleges that, on November 1, 2014, he was “brutally and viciously attacked by R.J. Donovan Correctional Facility (“RJD”) staff.” ECF No. 1-2 at 9. On this date, Plaintiff was “ordered to get into [his] blues (Class A clothing) and report to the building 10 office” of Ramrakha. Id. at 10. When Plaintiff came to Ramrakha’s office, he claims Ramrakha “irrationally asked [him] about the behavior of another inmate” who was formally Plaintiff’s cellmate. Id. Plaintiff indicated to Ramrakha that he “could not answer why another inmate would behave in a certain manner.” Id. Plaintiff alleges Ramrakha “escalated the situation and went ahead with his plans that began this ordeal.” Id.

         Plaintiff alleges that Ramrakha wrote an “untruthful” report, in which he claimed that Plaintiff “had previously refused three cellies” and was “having trouble with a fourth cellie currently assigned” to Plaintiff’s cell. Id. Plaintiff claims he “never refused a cellie.” Id. In addition, Ramrakha claimed in the report that, due to Plaintiff’s “aggressive nature and because [Plaintiff] told [Ramrakha] to lock [him] up,” Ramrakha had Plaintiff “placed in handcuffs.” Id. The handcuffs were “placed behind” Plaintiff’s back and he was “escorted to the program office.” Id.

         While Plaintiff was being escorted, Hernandez reported that Plaintiff stated, “[expletive] you Sarge, I want you guys to assault me so I can sue you [expletive], I am a hell of a writer” and he purportedly “kept shouting obscenities.” Id. at 11. Hernandez reported that Plaintiff “lunged in handcuffs at the Sgt. who allegedly was walking 5 feet in front of [Plaintiff] and that Hernandez felt concern for the safety of his superior.” Id. Hernandez claimed he “tried to pull [Plaintiff] back” but Plaintiff “exerted an aggressive forward momentum.” Id. A “beating ensued” and Plaintiff was “violently shoved into a stand up 3’ x 3’ x 8’ holding cage in handcuffs.” Id. at 12. Plaintiff alleges that the “shove was so hard [his] blood sprayed against the adjacent wall.” Id. Plaintiff claims that a “video will show” that he had a “bleeding wound on the left side of [his] head area above the temple,” a “bleeding scraped area” on his “left forehead area above the left eyebrow, a “bone chip” on his chin, and “two burn like marks” on his left leg. Id. at 13.

         III. Defendants’ Claims

         A. Defendant Ramrakha

         On November 1, 2014, Ramrakha, formerly a Sergeant at RJD, was “informed that inmate Farr, CDCR no. T51954 was having a problem with his cellmate.” ECF No. 73-4 (“Ramrakha Decl.”) ¶ 2. When Ramrakha “arrived in housing unit 10,” he was informed by “floor staff” that Plaintiff had “refused cellmates in the past and was having problems with the current inmate in his cell.” Id. Ramrakha interviewed Plaintiff who told him that he “did not want anyone in his cell due to his aggressive personality and was not accepting a cellmate.” Id. Ramrakha claims Plaintiff “became more aggressive by talking louder and assuming an aggressive stance.” Id. He further claims that Plaintiff told him he would not accept a cellmate and that Ramrakha should “just take him to the ‘hole’ (Administrative Segregation).” Id.

         Ramrakha instructed Hernandez to “handcuff Farr, conduct a clothed body search and escort him to the B Program Office.” Id. ¶ 3. While Plaintiff was being escorted, Ramrakha “walked in front of Farr and Officer Hernandez.” Id. Ramrakha claims Plaintiff “was belligerent and shouted obscenities during the escort.” Id. Ramrakha “heard Officer Hernandez tell Farr to get down” and, when he turned around, he saw “Farr and Officer Hernandez falling to the ground together.” Id. He claims he “did not see what caused this to happen.” Id. Hernandez then “used his body weight and strength to hold [Plaintiff] down.” Id. Ramrakha told Plaintiff to “calm down and placed [his] right hand on [Plaintiff’s] left shoulder to prevent him from getting up.” Id.

         Ramrakha attests that is the only force he used on Plaintiff and it was “force necessary to maintain control over [Plaintiff] to prevent him from injuring Officer Hernandez or himself.” Id. ¶ 4. He further attests that he “did not see anyone else use unnecessary force” on Plaintiff, nor did he see Hernandez “try to kick” Plaintiff’s legs. Id. “After responding staff arrived,” Plaintiff was “helped” to his feet and “escorted” to a “holding cell in the gym without further incident.” Id.

         B. Defendant Hernandez

         Hernandez, formerly a correctional officer at RJD, attests that he did place Plaintiff in handcuffs and “began escorting him from housing unit 10 to the program office” at the direction of Ramrakha. ECF No. 73-5 (“Hernandez Decl.”) ¶¶ 1, 2. During the escort, Hernandez was “holding [Plaintiff’s] forearm.” Id. ¶ 2. While they were walking, Hernandez claims Ramrakha was “walking a few feet” in front of Hernandez and Plaintiff. Id. “During the escort, [Plaintiff] appeared very agitated” and was “continually shout[ing] obscenities” at Hernandez and Ramrakha. Id.

         Hernandez claims Plaintiff “appeared to lunge” at Ramrakha and, “fearing for Sergeant Ramrakha’s safety,” Hernandez “pulled [Plaintiff] backwards toward” him. Id. Plaintiff, however, “continued to pull forward despite [Hernandez’s] efforts to pull him back.” Id. Hernandez claims that he “allowed the forward momentum to pull us both to the ground, where [Hernandez] landed on [Plaintiff].” Id. Hernandez ordered Plaintiff to “stop resisting and lay down.” Id. Plaintiff “continued to struggle on the ground,” which caused Hernandez to use his “body weight and strength to hold [Plaintiff] to the ground” while he waited for “responding staff to arrive.” Id. Hernandez attests Ramrakha “assisted in subduing [Plaintiff] by holding down his left shoulder.” Id. Barnard “arrived, and we helped [Plaintiff] to his feet and escorted him to a holding cell.” Id. Hernandez claims that “ended” his “involvement in the incident.” Id.

         LEGAL STANDARD

         Summary 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). 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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).

         As the moving parties, Defendants “initially bear[] the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). While Plaintiff bears the burden of proof at trial, Defendants “need only prove that there is an absence of evidence to support [Plaintiff’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.

         If Defendants meet their initial responsibility, the burden then shifts to Plaintiff to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co., 475 U.S. at 586. In attempting to establish the existence of this factual dispute, Plaintiff may not rely upon the allegations or denials of his pleadings but is instead required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, to support his contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. “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).

         Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of his suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. 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 him. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         Finally, 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). If, however, Plaintiff “fails to properly support an assertion of fact or fails to properly address [Defendants’] 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. 56(e)(2). Further, the Court cannot permit Plaintiff, as the opposing party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Indeed, a “motion for summary judgment may not be defeated . . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477 U.S. at 249–50 (1986); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“[M]ere allegation ...