United States District Court, S.D. California
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)
Janis L. Sammartino, United States District Judge
before the Court is a Motion for Summary Judgment filed
pursuant to Federal Rule of Civil Procedure 56 by Defendants
Hernandez, Ramrakha, and Barnard(“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
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. 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.
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.
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
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
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.
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.
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.
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.
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).”
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.
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.
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.
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
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
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.
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
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.
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 ...