FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on the first amended complaint, filed April 8, 2011. ECF No. 13. Plaintiff alleges that defendant J. McCullough used excessive force against him in violation of his Eighth Amendment rights.1

Pending before the court is defendant's motion for summary judgment. Defendant moves for summary judgment on the grounds that his use of force was a reasonable attempt at restoring order, and that he is entitled to qualified immunity. As explained below, the court recommends that the motion for summary judgment be granted.

II. Plaintiff's Allegations

In his verified April 8, 2011 first amended complaint, plaintiff alleges that on January 1, 2009, he was attacked by two inmates while on the exercise yard on the prison grounds. ECF No. 13 at 2. Plaintiff alleges that during the altercation with the two inmates, defendant fired a 40mm launcher and shot him in the head. Id. Plaintiff alleges he suffered an injury as a result of being shot in the head. Id. Plaintiff alleges he was shot several more times during the altercation, and was struck in his back and upper buttocks. Id. Plaintiff alleges that defendant used excessive force against him by shooting him with four rounds from the 40mm launcher when he was the victim in the altercation. Id. at 4. Plaintiff further alleges that shooting him in the head was more force than was necessary. Id.

III. Facts

For the purpose of the instant motion for summary judgment, the court finds the following facts undisputed.

1. Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and is currently incarcerated at California State Prison, Corcoran. Statement of Undisputed Facts ("SUF") ¶ 1 (ECF No. 42-3).

2. The incident at issue here took place on January 1, 2009, while plaintiff was incarcerated at High Desert State Prison ("HDSP"). SUF ¶¶ 2-3.

3. Defendant is a correctional officer employed by the CDCR at HDSP. On January 1, 2009, defendant was assigned to the Facility D, Building 4 control booth. McCullough Decl. ¶¶ 1-2 (ECF No. 42-4).

4. On January 1, 2009, at approximately 1:55 p.m., an inmate attacked plaintiff in Facility D's lower yard by striking him from behind in the head. SUF ¶¶ 3-4.

5. A correctional officer ordered the inmates to "get down." SUF ¶ 6; Brown Dep. 31:12-15 (ECF No. 42-16 at 91).

6. Several correctional officers responded to the altercation by forming a skirmish line in an effort to prevent the altercation from escalating. SUF ¶¶ 7-9.

7. A second inmate joined the attack on plaintiff and assaulted him in the head and torso. SUF ¶ 10.

8. Correctional officers, including defendant, were ordering the inmates to "get down," and all inmates but the three involved in the altercation complied with those orders. SUF ¶¶ 12-14, 47.

9. Some of the details concerning what took place next are disputed:

Id.

10. Two additional inmates separately attempted to join the altercation.3 SUF ¶¶ 33, 44. One inmate was successful in joining the attack on plaintiff. SUF ¶ 33. The second inmate was intercepted by correctional staff and prevented from joining the fighting inmates by being sprayed with pepper spray. SUF ¶ 44; Delgado Decl. Ex. G (ECF No. 42-16).

11. A CN 109 oleoresin capsicum pocket grenade was used in an effort to quell the fighting inmates. SUF ¶ 42. When the pocket grenade dispersed white smoke, the inmates ceased fighting and got down on the ground in prone position. SUF ¶ 43.

12. Following the altercation, plaintiff was taken to the triage and treatment area where his injuries were documented. SUF ¶¶ 48-50. Plaintiff sustained several injuries including a laceration on the top of his head and a lateral tear below his right eye. SUF ¶ 50.

13. Plaintiff was then seen by a physician's assistant. SUF ¶ 52. Plaintiff told the physician's assistant that he had been shot in the head and the laceration on his head was caused by the gunshot. SUF ¶¶ 53-54.

14. Plaintiff was interviewed by officers from HDSP's Investigative Services Unit regarding the altercation. SUF ¶ 56. Plaintiff told the officers that his head injury was caused by the "block gun." SUF ¶ 57.

15. Plaintiff was transferred to Renown Regional Medical Center in Reno, Nevada, where he told the physician there that he had been shot in the head with a "rubber bullet." SUF ¶¶ 61-62.

16. A Rules Violation Report ("RVR") was issued charging plaintiff with fighting in violation of state law. SUF ¶ 64; Delgado Decl. Ex. M. Specifically, the RVR states that plaintiff was "striking at the head and upper torso areas" of the two inmates who attacked him. Id. The RVR also states that plaintiff got back up after the inmates separated and began striking one of the inmates on the head again thereby continuing the altercation. Id. Plaintiff pled guilty to the charge of fighting and declined to make a statement regarding the charged offense. Id. It appears from the record that plaintiff did not appeal the RVR.

IV. Legal Standards for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "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).4

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 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. at 323.

Consequently, 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 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 the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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." T.W. Elec. Serv., 809 F.2d at 630. 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 a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 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. See 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 586 (citation omitted).

By notice issued November 29, 2012, plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

V. Legal Standards for the Eighth Amendment

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Id.

What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim the plaintiff must show that objectively he suffered a "sufficiently serious" deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Farmer, 511 U.S. at 834.

It is well established that "whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley, i.e., whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. A prisoner is not required to show a "significant injury" to establish that he suffered a sufficiently serious constitutional deprivation. Id. at 9-10.

Factors such as the need for the application of force, the relationship between the need and amount of force that was used, and the extent of injury inflicted are relevant to the ultimate determination as to whether force used by prison personnel was excessive. Whitley, 475 U.S. at 321. From these factors, inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur. "Equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of facts known to them, and any efforts made to temper the severity of a forceful response." Whitley, 475 U.S. at 321.

Thus, there is no Eighth Amendment violation if "force was applied in a good-faith effort to maintain or restore discipline." Hudson, 503 U.S. at 7. Courts accord wide-ranging deference to prison administrators in the exercise of policies and practices that in their judgment are needed to preserve internal security, safety and discipline. Whitley, 475 U.S. at 322-23. The infliction of pain in the course of implementing prison security measures does not amount to cruel and unusual punishment even though it may appear, in hindsight, the degree of force was unreasonable. Id. at 319. An allegation of cruel and unusual punishment should proceed to trial only if the evidence supports a reliable inference that the prison official intended to inflict pain. Id. at 322.

VI. Discussion

Defendant seeks summary judgment on the ground that he acted in good faith to restore order and maintain discipline, and is therefore entitled to qualified immunity. Essentially, defendant contends that the evidence establishes he did not intend to harm plaintiff, but was trying to stop the inmates from fighting on the yard in an effort to restore order and maintain discipline. Plaintiff argues that he was the victim of an attack by two inmates, and therefore it was malicious and sadistic for defendant to shoot him. For the reasons discussed below, the court finds that defendant is entitled to qualified immunity, and his motion for summary judgment should be granted.

A. Qualified Immunity Standard

The doctrine of qualified immunity protects government officials from civil liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Because qualified immunity is "an immunity from suit rather than a mere defense to liability," it must be resolved at the "earliest possible stage in litigation." Id. at 231-32.

To determine if an official is entitled to qualified immunity the court determines (1) if the facts as alleged state a violation of a constitutional right and (2) if the right is clearly established so that a reasonable official would have known that his conduct was unlawful. Ashcroft v. al-Kidd ___ U.S. ___, 131 S.Ct. 2074, 2080 (2011). A negative answer to either question means immunity from suit is appropriate. Pearson, 555 U.S. at 236. District courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id.

Herein, the prongs of the qualified immunity analysis will be addressed in the order they are listed above. As to the first prong, the court must determine if the facts as alleged state a violation of plaintiff's constitutional right. Ashcroft, 131 S.Ct. at 2080. For the reasons stated below, the court finds no use of excessive force and therefore will not consider the second prong of the analysis. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).

B. Analysis of Defendant's Motion for Summary Judgment

The crux of plaintiff's argument is that because he was the victim of an attack by at least two inmates, it was malicious and sadistic for defendant to shoot him with the 40mm launcher rather than the inmates who were the aggressors in the altercation.

Excessive force does not amount to a constitutional violation if it is applied in a good faith effort to restore discipline and order and not "maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-21. "This standard necessarily involves a more culpable mental state than that required for excessive force claims arising under the Fourth Amendment[,] . . . not merely objectively unreasonable force." Clement, 298 F.3d at 903 (citing Graham v. Connor, 490 U.S. 386, 398 (1989)). However, "[e]ven under the lower Fourth Amendment excessive force standard, the Supreme Court has admonished that officials `can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution.'" Clement, 298 F.3d at 903 (finding bystander inmates failed to establish prison officials administered pepper spray "maliciously and sadistically for the very purpose of causing harm") (quoting Saucier, 533 U.S. at 206).

Here, even accepting plaintiff's allegations — that he was the victim of an attack by two inmates, that he was shot four times by defendant during the attack, and that he sustained an injury to his head as a result of one of those shots — plaintiff has still failed to establish that defendant fired any of the 40mm launcher rounds at him maliciously and sadistically for the very purpose of causing harm. Clement, 298 F.3d at 903. It is undisputed that defendant fired four rounds from the 40mm launcher because the inmates continued to fight thereby necessitating additional rounds in an effort to maintain order. The court finds that an inference can "be drawn as to whether the use of force could plausibly have been thought necessary." Whitley, 475 U.S. at 320-21. At least three inmates were involved in a fight on the prison yard, and it is undisputed that two more inmates attempted to join the fight at some point. Some use of force was necessary to quell the fight before it escalated into an uncontrollable situation such as a riot, which "indisputably poses significant risks to the safety of inmates and prison staff." Whitley, 475 U.S. at 324 (finding the intentional shooting of an inmate was part of a good faith effort to restore prison security and did not violate the inmate's Eighth Amendment rights). Thus, the court finds that, given the circumstances, defendant's use of force was a good faith attempt at restoring order.

With regard to plaintiff's assertion that he was the victim of the attack and therefore the use of force on him was malicious and sadistic, the court finds that it was reasonable for defendant to believe that shooting plaintiff was a good faith effort to restore order and prevent the altercation from becoming uncontrollable. From defendant's vantage point in the control tower, he observed two inmates attack plaintiff, and an altercation between three inmates ensued. While plaintiff argues he was the victim of the attack, he provided no evidence to indicate that he was not fighting with the other two inmates. In fact, plaintiff admits to being involved in the altercation, and was found guilty of fighting.5 Delgado Decl. Ex. M. It is also undisputed that plaintiff refused the correctional officer's orders to get down. While plaintiff characterizes his fighting and refusal to get down as necessary in self-defense, it was reasonable for defendant to perceive plaintiff's actions as equally aggressive as he observed the altercation from the control tower. Thus, it was reasonable for him to shoot the 40mm launcher at plaintiff, who was part of the altercation, in a good faith effort to restore discipline given defendant's reasonable belief that the altercation posed a threat to the safety of staff and inmates. Hudson, 503 U.S. at 6; Whitley, 475 U.S. at 321-22.

Plaintiff attempts to argue that defendant violated his constitutional rights because "other methods of force could have been applied to secure the incident."6 ECF No. 50 at 5. However, the fact that the degree of force used appears unreasonable in hindsight is not in itself sufficient to establish a constitutional violation. Whitley, 475 U.S. at 319. Prison officials are "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 321-22 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970)). Correctional officers 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 inquiry here is whether defendant's actions were applied in a good faith effort to maintain or restore discipline. Id. at 320-21. As discussed above, the court finds that there is no evidence from which an inference could be drawn that defendant's subjective state of mind was to maliciously harm plaintiff. The evidence shows that defendant's subjective state of mind was to stop the altercation plaintiff was involved in, and the forced used with the 40mm launcher was applied in a good faith effort to prevent the altercation from escalating. See Raspberry v. Trevino, No. 1:08-cv-01767 AWI GSA PC, 2012 WL 2610681, at *2-8 (E.D. Cal. July 5, 2012) (analyzing the Hudson factors and finding defendant correctional officer did not use excessive force when he shot an inmate in the back of the head while the inmate was defending himself during an altercation because the evidence established the shots were "taken in a good faith effort to restore order and maintain discipline"), adopted in full, No. 1:08-cv-01767 AWI GSA PC, ECF No. 58 (E.D. Cal. Sept. 17, 2012).

Therefore, the court finds that plaintiff fails to raise a triable issue of fact regarding whether defendant violated his Eighth Amendment rights.

IV. Conclusion

Accordingly, IT IS HEREBY RECOMMENDED that defendant's motion for summary judgment (ECF No. 42) be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that 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).