FINDINGS AND RECOMMENDATION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 50)

OBJECTIONS DUE IN THIRTY DAYS

GARY S. AUSTIN, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se in this civil rights action. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Pending before the Court is Defendants' motion for summary judgment. Plaintiff has opposed the motion.1

I. Procedural History

This action proceeds on the March 2, 2010, first amended complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Corcoran, brings this civil rights action against Defendants A. Trevino and L. Miguel, correctional officers employed by the CDCR. The events that give rise to this lawsuit occurred while Plaintiff was housed at CSP Corcoran. Plaintiff claims that Defendants subjected him to excessive force in violation of the Eight Amendment's prohibition on cruel and unusual punishment, and have subjected him to racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Defendants have filed a motion for summary judgment on the ground that there does not exist a triable issue of disputed fact. Plaintiff has opposed the motion.

II. Allegations

The event that gives rise to this lawsuit occurred on June 9, 2008, at Corcoran State Prison, where Plaintiff was housed. During the evening dayroom program, Plaintiff and another inmate were engaged in a fist fight. Defendant Trevino, the floor officer, ordered both inmates to lay down on the ground. Plaintiff "attempted to fend off the onslaught of blows." C/O Trevino then sprayed both inmates with pepper spray. The inmates did not comply, and Trevino ordered the section control officer, Defendant Miguel, to fire the 40mm baton launcher. C/O Miguel fired a round, which missed both inmates. Plaintiff, upon hearing the firing of the launcher, went prone. The other inmate failed to go prone, and Miguel fired a second round, which struck Plaintiff in the back of the head. (Am. Compl. p. 4.) Plaintiff alleges that Defendants used excessive force, and their use of force was motivated by Plaintiff's ethnicity.

III. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Matsushita, 475 U.S. at 588; County of Tuolumne v. Sonora Community Hosp., 263 F.3d 1148, 1154 (9th Cir. 2001).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus, 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, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

A. Excessive Force

Where prison officials are accused of using excessive physical force, the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992)(quoting Whitley v. Albers, 475 U.S. 312, 320-321 (1986)). Factors to consider in evaluating a claim of excessive force in the prison context are: (1) the extent of the injury suffered by an inmate; (2) the need for the application of force; (3) the relationship between that need and the amount of force used: (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7; Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).

The infliction of pain in the course of a prison security measure "does not amount to a cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied was unreasonable, and hence unnecessary." Id. at 319. Prison administrators "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id. at 321-322 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970)).

In order to meet their burden on summary judgment, Defendants must come forward with evidence that establishes, without dispute, that force was applied in a good-faith effort to maintain or restore discipline, and not maliciously or sadistically to cause harm. Defendants argue that they reasonably perceived Plaintiff and Tatum (the other combatant) as a threat, and that they used the minimal amount of force necessary to stop the combatants. Defendants support their motion with their declarations, along with the crime incident report of the incident at issue, and relevant pages from Defendants' first set of admission requests to Plaintiff, and Plaintiff's responses to those requests.

Defendant Trevino, the housing officer, declares that, on the date of the incident:

(Trevino Decl.; ¶ ¶ 3-22.)

Officer Miguel, the control booth officer, declares that:

(Miguel Decl.; ¶ ¶ 3-24.)

Considering the five factors set forth in Whitley, the Court finds that Defendants have come forward with evidence that establishes the lack of existence of a triable issue of fact regarding whether force was used maliciously or sadistically. Defendants argue that the force used on Plaintiff was applied in a good faith effort to maintain or restore discipline.

Factor (1). The extent of injury suffered by Plaintiff. Plaintiff's first amended complaint, made under the penalty of perjury, establishes that the rubber bullet caused bleeding and temporary unconsciousness.2 Plaintiff also suffered from blurred vision, periodic dizziness, and, at the time the first amended complaint was filed, psychiatric treatment as a result of "mental trauma." The Whitley court specifically held that the extent of physical injury is not the controlling factor in determining whether an Eighth Amendment violation occurred. Hudson instructs that "[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 responsible officials," and "any efforts made to temper the severity of a forceful response." Hudson, 503 U.S. at 8. It is undisputed that Plaintiff was shot in the head by Officer Miguel with a rubber bullet and suffered injury. The law is clear, however, that injury is but one factor to consider.

Factor (2). The need for application of force. Defendants' declarations have established that they were responding to two inmates engaged in mutual combat. (Trevino Decl. ¶ 19; Miguel Decl. ¶ 18.) Plaintiff's evidence, in the form of his amended complaint, does not dispute this. As Plaintiff puts it, he "became embroiled in an argument with another inmate that led to a fistfight." (Am. Compl. p. 3.) Defendant Trevino's declaration establishes that he ordered all of the inmates to get down, and all of the inmates complied, with the exception of Plaintiff and inmate Tatum. Defendant's evidence establishes that there was an altercation, and Plaintiff refused a verbal order to get down. Defendant's evidence therefore establishes the need for the application of force. Plaintiff's opposition is not made under the penalty of perjury, and the only exhibit attached to the opposition is a copy of Defendant Trevino's declaration. The Court finds that Defendants' evidence establishes, without dispute, that there was a need for the application of force. Plaintiff has failed to come forward with evidence to the contrary.

Factor (3). The relationship between the need for application of force and the amount of force used. Trevino's declaration establishes that an attempt was made to stop the fight with a verbal order, and that the inmates failed to comply. Trevino and another C/O then attempted to stop the fight with pepper spray, spraying both inmates in the face with pepper spray. The pepper spray had no effect on either inmate, and they continued fighting. (Trevino Decl., ¶¶ 4, 8.) Plaintiff's first amended complaint, taken as a declaration, establishes that the use of pepper spray "did not deter the aggressing [sic] inmate from throwing punches." Plaintiff does not, however, establish that he complied with the order to get down until after he heard the sound of the first 40 mm round. Defendants' evidence establishes, without dispute, that neither inmate complied with orders to get down, despite being pepper sprayed. The evidence therefore establishes, without dispute, that the use of the 40 mm launcher was taken in a good faith effort to maintain order.

Factor (4). The theat reasonably perceived by Trevino and Miguel. Both Defendants have declared that at the time Plaintiff and Tatum started fighting, there were approximately thirty to forty inmates in the dayroom area, and that the disruptive behavior could have incited the other inmates to fight among themselves or attack staff. Their declarations establish the need to put an immediate end to the fighting and gain control of the situation. (Trevino Decl. ¶ 20; Miguel Decl. ¶ 20.) Plaintiff offers no evidence to the contrary.

Factor (5). Any efforts made by Trevino and Miguel to temper the severity of a forceful response. As noted, the evidence establishes that verbal commands and pepper spray were ineffective in stopping the fight. Miguel declares that he shot the launcher because he believed it was necessary to stop the disruptive and violent behavior. Officer Miguel specifically declares that the pepper spray "had no effect on them, and they continued to fight despite repeated orders to stop." (Miguel Decl. ¶ 18.) As noted, Plaintiff's declaration does not dispute that he did not drop to the ground until he heard the first round fired from the 40 mm launcher. Defendants' evidence establishes, without dispute, that lesser means of force were attempted before resorting to the 40 mm launcher. Plaintiff's own evidence establishes this.

Plaintiff's grievance seems to be that once he went down, another shot was fired, hitting him in the head. These two facts alone, taken without consideration of any other facts, would suggest a possibility that he was shot intentionally. However, considering all the Hudson factors, as we must, and considering all the evidence submitted by Defendants, the Court finds that the force used on Plaintiff was taken in a good faith effort to restore order and maintain discipline. Although Plaintiff does come forward with evidence, in the form of a declaration, that he went prone and then was shot in the head, Defendants' evidence establishes that the other inmate did not go down after the first shot. Officer Miguel declared that instead of going down after the first shot, Tatum bent at the waist and "appeared to be standing over Rasberry." (Miguel Decl. ¶ 12.) Miguel reloaded the launcher, which only took a matter of seconds, aimed at Tatum's right thigh, and shot a second round, which had the desired effect. (Id. ¶ 13.) Plaintiff offers no evidence to the contrary.

Although it is undisputed that Officer Miguel shot a second round after Plaintiff went down, Defendants' evidence establishes that a second shot was necessary in order to force inmate Tatum to comply with previous orders to get down. It only took a few seconds to fire a second round. There is no evidence from which an inference could be drawn that Officer Miguel intentionally shot Plaintiff. Hudson directs that prison officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force. Despite the weight of these competing concerns, corrections officials must make their decisions "in haste, under pressure, and frequently without the luxury of a second chance." Hudson, 503 U.S. at 7, quoting Whitley, 475 U.S. at 320.

The Court finds that Defendants have come forward with evidence that establishes the lack of existence of a triable issue of fact. Defendants' evidence establishes that the force used against Plaintiff was necessary in order to stop Plaintiff and inmate Tatum from fighting and was only taken after lesser measures proved unsuccessful. Defendants have come forward with evidence that establishes that they perceived a threat to inmates and staff. Plaintiff has failed to come forward with evidence to the contrary. Although Plaintiff suffered injury as a result of Defendants' actions, a claim of excessive force under the Eighth Amendment is concerned with the amount of force used, not the nature or severity of the injury inflicted. Hudson, 503 U.S. at 8-10; Oliver v, Keller, 289 F.3d 623, 628 (9th Cir. 2002). Defendants are therefor entitled to summary judgment on Plaintiff's claim of excessive force.

B. Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). An equal protection claim may be established in two ways. First, a plaintiff establishes an equal protection claim by showing that the defendant has intentionally discriminated on the basis of the plaintiff's membership in a protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001). Under this theory of equal protection, the plaintiff must show that the defendants' actions were a result of the plaintiff's membership in a suspect class, such as race. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). To establish a violation of the Equal Protection Clause, Plaintiff must present evidence of discriminatory intent. Washington v. Davis, 426 U.S. 229, 239-40 (1976); Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).

Plaintiff, who is African American, alleges that Defendant Trevino, who is Hispanic, shot him because of his ethnicity. The event at issue in this lawsuit occurred in June of 2008. Plaintiff's first amended complaint, taken as a declaration, indicates that Defendant Trevino was the first responder to a disturbance involving "no less than five" Hispanic inmates on August of 2008. Plaintiff alleges that Trevino did not use pepper spray, and that the "melee" lasted over five minutes and was "much graver" than the fight involving Plaintiff. Plaintiff also alleges that Trevino was suspended from Duty for handcuffing and beating an African American inmate in August of 2009.

Defendant Trevino declares that:

(Trevino Decl. ¶ 21-24.)

Defendant Trevino has come forward with evidence that he did not use force on Plaintiff because he is African American. Defendant's declaration establishes that he did not order Officer Miguel to file the 40 mm launcher. Although Plaintiff declares that he did order Miguel to fire, this claim does not turn on that fact. Miguel declares that he fired the 40 mm launcher in order to get Plaintiff and inmate Tatum to comply with prior orders to get down. As noted, it is undisputed that verbal orders and pepper spray were ineffective in gaining compliance.

Although Plaintiff states in his verified amended complaint that Trevino was suspended from duty for beating and handcuffing an African American inmate, he does not come forward with any facts that would be admissible in evidence to support his statement. "A verified complaint may be treated as an affidavit to oppose summary judgment to the extent it is `based on personal knowledge' and `sets forth specific facts admissible in evidence." Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996)(quoting McCauley v. Babbitt, 833 F.2d 196, 197-98 & n. 1 (9th Cir. 1987)(per curiam), amended by 135 F.3d 1318 (9th Cir. 1998)(order); see also Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004); Lopez v. Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000)(en banc).

Here, we have Officer Trevino's declaration, based on his personal knowledge, that he reasonably perceived a threat to Plaintiff and other inmates, and acted in response to that threat. Officer Trevino declares that he has never been disciplined for racial discrimination. Plaintiff offers no competent evidence to the contrary. Plaintiff's evidence establishes, at most, that Officer Trevino was involved in a use of force incident with other inmates. Whether that use of force was sadistic and malicious, or was used in a good faith effort to restore order and maintain discipline, is not before the Court on this motion. Plaintiff's evidence establishes, at most, that Officer Trevino was involved an a different incident of force in August of 2008. That the inmates involved were Hispanic and the incident "much graver" than the incident at issue in this case does not establish evidence that Trevino acted with the intent to discriminate against Plaintiff on the date at issue in this lawsuit.

IV. Conclusion and Recommendation

Defendants have come forward with evidence that establishes, without dispute, that Plaintiff was involved an a physical altercation with another inmate, that they refused orders to get down, and continued to refuse to get down after being pepper sprayed. Defendants' evidence establishes that two 40 mm rounds from a baton launcher were necessary in order to gain compliance, and that Defendants acted in response to a theat to inmates and staff, and not on the basis of Plaintiff's race. Plaintiff offers no evidence to the contrary.

Accordingly, IT IS HEREBY RECOMMENDED that Defendants' motion for summary judgment be granted, and judgment be entered in favor of Defendants and against Plaintiff.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.