FINDINGS AND RECOMMENDATIONS TO GRANT IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 121.)

OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

LAWRENCE J. O'NEILL, Magistrate Judge.

I. BACKGROUND

Gary Andre Lacy ("Plaintiff") is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 9, 2007. (ECF No. 1.) This action now proceeds on the Second Amended Complaint, filed on April 28, 2009, against defendants Correctional Officer (C/O) T. Reyna, C/O N. Correa, Sergeant M. Bremnar, Sergeant M. Brookwalter, Captain H. Tyson, Sergeant J. Peacock, Medical Technical Assistant (MTA) Aspeitia-Fleming, and Doctor I. Patel, (collectively, "Defendants") on Plaintiff's claims for excessive force, failure to protect, and deliberate indifference to serious medical needs, based on events beginning on January 27, 2006.1 (ECF No. 16.)

On June 29, 2012, Defendants filed a motion for summary judgment.2 (ECF No. 121.) On November 8, 2012, Plaintiff filed an opposition to the motion.3 (ECF Nos. 135-137.) On December 10, 2012, Defendants filed a reply. (ECF No. 144.)

Defendants' motion for summary judgment is now before the Court. Local Rule 230(l). For the reasons that follow, the Court recommends that Defendants' motion be granted in part and denied in part.

II. SUMMARY JUDGMENT STANDARD

Any 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 Mutual 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 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

Defendants do not bear the burden of proof at trial and in moving for summary judgment; they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 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 meets their initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." Id. (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)).

In 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), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

III. PLAINTIFF'S ALLEGATIONS IN THE COMPLAINT

The events at issue allegedly occurred at Kern Valley State Prison (KVSP) when Plaintiff was incarcerated there. Plaintiff alleges the following facts.

On January 27, 2006, Officer R. Reyna (now deceased) approached Plaintiff during chow and demanded that Plaintiff leave his food at the table and exit the dining hall. Once outside, R. Reyna cuffed Plaintiff and slammed his face into the brick wall several times. R. Reyna then stated, "write this one up too[,]" referring to the fact that Plaintiff previously filed a complaint against R. Reyna for misconduct. (2d Amd Cmp, ECF No. 16 at 3 ¶IV.) R. Reyna twisted Plaintiff's hands and arms above his head, causing severe pain. R. Reyna then escorted Plaintiff to the program office to be assaulted further by other officers.

Once Plaintiff was inside the program office, he was "shoved" inside the holding cage and strip searched. R. Reyna and defendant Correa "twisted and jerked" Plaintiff's arms high in the air, causing pain. (Id.) Plaintiff then told defendants Peacock, Bremnar, Brookwalter, and T. Reyna that he was just assaulted. Defendant Tyson was notified of Plaintiff's allegation and, while defendant Tyson stood in the hallway "supervising," Plaintiff was slammed into the walls and to the ground by R. Reyna and defendants Peacock, Bremnar, Brookwalter, and T. Reyna. (Id. at 4:21-23.) Defendants Brookwalter, Bremnar, and defendant T. Reyna then dragged Plaintiff out of the holding cage by his hands and arms across the ground into the hallway where Plaintiff was hoisted into the air and carried across the yard. R. Reyna and defendants Brookwalter, Bremnar, and T. Reyna dropped Plaintiff on his torso in front of housing unit #3.

While Plaintiff was on the ground, defendant Brookwalter twisted Plaintiff's shoulder and left arm back and upwards, as defendant Bremnar pinned Plaintiff's right arm against the concrete and R. Reyna and defendant T. Reyna pressed their knees into Plaintiff's legs and lower back. Defendant Brookwalter then ordered Plaintiff to stand while violently twisting Plaintiff's arm. Defendant Bremnar lifted Plaintiff up and carried him to his housing unit where he was sent face first through the open hall window and punched in the ribs by R. Reyna. Plaintiff was then forced into his cell.

Plaintiff sought medical treatment, but defendants Tyson, Peacock, Brookwalter, Bremnar, and Aspeitia denied his requests. Plaintiff's cellmate noticed Plaintiff's injuries and alerted prison officials. Plaintiff was seen by Dr. Akanno [not a defendant] who determined Plaintiff needed x-rays and other treatment as a result of the assault. Defendant MTA Aspeitia-Fleming told Plaintiff the reason she refused to provide Plaintiff with medical treatment was because he was a rat and lived on a protective custody yard.

On January 30, 2006, Plaintiff's mother began calling the KVSP ombudsman and Warden to find out why no incident or use of force reports were filed in connection with the January 27, 2006 incident. Defendant Tyson then called Plaintiff into a meeting where Plaintiff told Tyson that he saw him in the hallway watching as he was being assaulted and asked Tyson why no investigation was taking place. Defendant Tyson sent Plaintiff back to his cell.

On February 1, 2006, Plaintiff filed another staff complaint against R. Reyna and defendants T. Reyna, Heanacho, Correa, Tyson, Brookwalter, and Bremnar for the January 27 assaults. Plaintiff was subsequently transferred to administrative segregation (Ad-Seg), where he unsuccessfully sought medical treatment for his injuries. Plaintiff filed medical appeals, but defendant Patel refused to intervene or to ensure Plaintiff received appropriate treatment.

IV. PLAINTIFF'S CLAIMS

A. EXCESSIVE FORCE — DEFENDANTS CORREA, BROOKWALTER, BREMNAR, T. REYNA, AND PEACOCK

The Eighth Amendment prohibits those from operating our prisons from using "excessive physical force against inmates." Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1246, 1250 (9th Cir. 1982) (prison officials have "a duty to take reasonable steps to protect inmates from physical abuse"); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988), cert. denied, 490 U.S. 1012 (1989). "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Farmer, 511 U.S. at 834.

Whenever prison officials are accused of using excessive physical force in violation of the Eighth Amendment's prohibition against cruel and unusual punishment, the core judicial inquiry is whether the 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, 6-7 (1992). Force does not amount to a constitutional violation if it is applied in a good faith effort to restore discipline and not "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986); Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). Under the Eighth Amendment, the Court looks for malicious and sadistic force, not merely objectively unreasonable force. Clement, 298 F.3d at 903.

In determining whether the constitutional line has been crossed, the Court may consider such factors as the need for the application of force, the relationship between the need and amount of force that was used, the extent of injury inflicted, the threat reasonably perceived by the responsible officials and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. 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. Whitley, 475 U.S. at 322.

1. Escort from Dining Hall to Program Office

Defendants argue that taking Plaintiff's account as believable, the discomfort felt by Plaintiff during the escort from the dining hall to the Program Office did not cause any observable injury, or violate Plaintiff's constitutional rights. Defendants support their argument with Plaintiff's deposition and the declarations of defendants T. Reyna, Correa, and Tyson.

In his deposition, Plaintiff testifies:

(Pltf.'s Depo. ("Depo.") 29:20-24.)

Regarding the escort, N. Correa declares:

(Correa Decl., ECF No. 121-5 ¶¶3-6.)

C/O T. Reyna declares:

(T. Reyna Decl., ECF No. 121-9 ¶¶13-14.)

Captain Tyson declares:

(Tyson Decl., ECF No. 121-11¶¶12-14.)

Concerning Plaintiff's medical examination after the first escort, MTA Aspeitia-Fleming declares:

(Aspeitia-Fleming Decl., ECF No. 121-2 ¶¶7-10.)

2. Escort from Program Office to Section B Housing

Defendants argue that according to Plaintiff's account of the escort from the Program Office holding cell to Section B Housing, defendants Brookwalter, Bremnar, and T. Reyna, and another officer lifted and held Plaintiff by his arms and legs because of the officers' need to transport Plaintiff to his cell so that the day's program could continue. Defendants support their argument with Plaintiff's deposition testimony.

Once at the Program Office, Plaintiff was placed in a holding cell. Plaintiff requested medical attention and received a medical evaluation approximately fifteen minutes after being placed in the holding cell. (Depo. 31:2-5.) Plaintiff testified that the following chain of events occurred after being placed in the holding cell:

(Depo. 39:1-43:4.)

Plaintiff described his injuries from the events of January 27, 2006:

(Depo. 86:12-19.)

MTA Aspeitia-Fleming testified about her second examination of Plaintiff which took place at 11:00 a.m. on January 27, 2006:

(Aspeitia-Fleming Decl., ECF No. 121-2 ¶¶11-16 & Exh. D.)

3. Discussion

The Court finds that Defendants have met their burden regarding the escort from the dining hall to the Program Office and placement into the holding cage. Plaintiff's testimony establishes that the escort to the program office was conducted by R. Reyna. Plaintiff testifies in his deposition that he followed R. Reyna's orders but was assaulted. Specifically, Plaintiff testifies that "[t]he officer ordered me to set my meal on the table and step outside the dining hall. When I followed those orders and stepped outside the dining hall, I was ordered to stand and face the wall. And when I stood and faced the wall he ordered me to put my hands behind my back. And when I did that, he cuffed me up and proceeded to hit my head up against the wall and then proceeded to assault me further, which I allege in my facts." (Dep. 23:17-25.) As noted, however, defendant R. Reyna was dismissed from this action because he passed away.

Plaintiff testifies in his deposition that "defendant N. Correa arrived as well and assisted R. Reyna with bending and jerking my arms behind my back, which had me tilted over during the escort." (Depo. 29:20-24.) To the extent that defendant Correa grasped Plaintiff's wrists and elbow in order to maintain control of Plaintiff, such force does not subject him to liability. With respect to any of the remaining Defendants, Plaintiff's testimony fails to establish any evidence that excessive force was used during the escort to the program office.

Defendants do not, however, meet their burden regarding the transport of Plaintiff from the holding cage to section B housing. Although Sgt. Peacock's declaration establishes that Plaintiff was "lowered to the ground" in front of the housing unit, Defendants' evidence establishes that Plaintiff was deliberately dropped on his face and chest by defendants Bremnar, Brookwalter, and T. Reyna. Plaintiff alleges that he was dropped, and indicates in his deposition that he was dropped from a horizontal position.

(Depo. 52:21-53:6.)

(Depo. 55:19-56:6.)

(Depo. 41:1-13.)

As noted above, the evidence for 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 Elec. Indus. Co, Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). A reasonable inference can be drawn from Plaintiff's deposition that defendants Bremnar, Brookwalter, and T. Reyna dropped Plaintiff onto the ground from a horizontal position, and that they pushed Plaintiff into his cell, with Plaintiff falling "face forward on the cell inside of the cell on the ground."

(Depo. 42:10-24.)

Defendant Sgt. J. Peacock declared:

(Peacock Decl., ECF No. 121-8 ¶¶17-20.)

Defendant T. Reyna declared:

(T. Reyna Decl., ECF No. 121-9 ¶¶21-28.)

Defendant H. Tyson declared:

(Tyson Decl., ECF No. 121-11 ¶¶12-14.)

As for Sgt. Peacock, Defendants' evidence shows that Peacock only supervised the other officers during the transport and did not touch Plaintiff. In his deposition, Plaintiff testified that Sgt. Peacock did not use excessive force against Plaintiff up to the time when Plaintiff was given a medical examination by MTA Aspeitia-Fleming in the holding cell. (Depo. 33:21-38:12.)

(Depo. 74:6-75:4.)

Sergeant Peacock declared that he did not participate in the second escort.

(Peacock Decl., ECF No. 121-8 ¶26.)

Defendants argue that the force used on Plaintiff did not result in injury significant enough to warrant relief. The Prison Litigation Reform Act provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental and emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The physical injury "need not be significant but must be more than de minimis." Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).

However, the relevant inquiry is not whether Plaintiff's injuries are de minimis, but whether the use of force was de minimis. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) ("Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.") The degree of Plaintiff's injuries only serves as evidence of the degree of force used, it does not conclusively resolve the question of whether the degree of force was de minimis. Id. ("The extent of injury may . . . provide some indication of the amount of force applied.") Defendants cannot escape liability for the use of force simply because Plaintiff failed to suffer any treatable injury. "An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury." Id.; Hudson, 503 U.S. at 9 ("In the excessive force context, society's expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated. This is true whether or not significant injury is evident.") (internal citations omitted). This case therefore turns on whether the force was used in a good faith effort to restore order or maintain discipline. The extent of Plaintiff's injury will be a factor on determining whether the force used was excessive. Plaintiff testified in his deposition about his injuries:

(Dep. 86:9-23.)

As to defendants Correa and Peacock, the Court finds that they have met their burden on summary judgment for Plaintiff's claims of excessive force against them. The burden now shifts to Plaintiff to designate specific facts demonstrating the existence of genuine issues for trial on these claims.

Plaintiff offers no argument, or evidence, in his opposition that defendant Peacock exercised excessive force against him. In fact, Plaintiff testified in his deposition that Peacock's participation was limited to supervisory liability and the failure to protect Plaintiff from excessive force by others. (Dep. 74:6-75:4.)

With respect to defendant Correa, Plaintiff testified that "[d]uring the escort to the program office, while I was being further applied force — excessive force on, the defendant N. Correa arrived as well and assisted R. Reyna with bending and jerking my arms behind my back, which had me tilted over during the escort." (Dep. 29:20-25.) Plaintiff also testified that the actions of R. Reyna and Correa caused him injuries.

(Pltf's Decl., ECF No. 137 at 86 ¶6.)

(Depo. 46:10-16.)

Plaintiff's evidence includes a declaration dated August 12, 2012, by Armando Sanders, V-28669, a state prisoner who was Plaintiff's cell mate in January 2006 during the events at issue.

(Decl. of Armando Sanders, ECF No. 137 at 96 ¶9.)

The Court finds that Plaintiff has demonstrated that genuine issues exist for trial on his excessive force claim against defendant Correa. The facts are disputed as to whether defendant Correa applied unnecessary force to Plaintiff during the escort.

B. FAILURE TO PROTECT — DEFENDANTS PEACOCK AND TYSON

The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer, 511 U.S. at 832-33, (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent to a serious threat to the inmate's safety." Farmer at 834. "The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial `risk of serious damage to his future health . . .'" Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Farmer at 835. The Court defined this "deliberate indifference" standard as equal to "recklessness," in which "a person disregards a risk of harm of which he is aware." Id. at 836-37.

The deliberate indifference standard involves both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Id. at 834. Second, subjectively, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

Defendants Sgt. Peacock and Captain Tyson argue that they did not fail to intervene to prevent a serious risk of harm to Plaintiff resulting from Defendants' use of force during the escort, because no such risk existed, and excessive force was not used. Defendants also assert that it is undisputed that defendant Tyson did not touch Plaintiff or otherwise participate in the escort. Defendants cite Plaintiff's deposition testimony at 39:11-14, 44:25-45:8, and 48:15-19, in support their arguments. (ECF No. 121 at 17 ¶II.B; ECF No. 121-12 at 4 ¶¶21, 22, 26.) However, the deposition testimony cited by Defendants, shown directly below, does not support their arguments.

(Depo. 39:11-14.)

(Depo. 44:25-45:8.)

(Depo. 48:15-19.)

The Court finds that defendants Peacock and Tyson have not met their burden on summary judgment for Plaintiff's claims that they failed to protect him from excessive force.

C. SUPERVISORY LIABILITY — DEFENDANTS PEACOCK AND TYSON

To the extent that Plaintiff seeks to hold defendants Peacock and Tyson liable for supervisory liability, Plaintiff may not do so. "Liability under [§] 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§] 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948 (2009); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Therefore, to the extent that Plaintiff seeks to impose liability upon any of the Defendants in their supervisory capacity, Plaintiff cannot state a claim.

D. MEDICAL CLAIM — DEFENDANTS BREMNAR, BROOKWALTER, PEACOCK, TYSON, ASPEITIA-FLEMING, AND PATEL

1. Legal Standard

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)). The two-part test for deliberate indifference requires the plaintiff to show (1) "`a serious medical need' by demonstrating that `failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). The existence of a serious medical need is the objective element of an Eighth Amendment claim and deliberate indifference is the subjective element. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

Objective Element — Serious Medical Need

Indications of a serious medical need are (1) the existence of an injury that a reasonable doctor would find important and worthy of comment or treatment, (2) the presence of a medical condition that significantly affects an individual's daily activities, and/or (3) the existence of chronic or substantial pain. Snow, 681 F.3d at 982-85 (objectively serious medical need existed where prisoner who needed double hip replacement surgery endured a years-long delay and his degenerated condition caused him excruciating pain and rendered him barely able to walk); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (hernia constituted objectively serious medical need where it caused the prisoner pain and he endured an approximately 4 year delay before receiving necessary surgery); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (objectively serious medical need existed where prisoner's broken jaw was wired shut for months, affecting his ability to eat and likely causing him pain) (quotation marks omitted); see also McGuckin, 974 F.2d at 1059-62, overruled on other grounds by WMX Techs., Inc., 104 F.3d at 1136 (en banc) (objectively serious medical need existed where prisoner endured a more than 3 ½ year delay in receiving back surgery for "dramatic" condition "constituting massive herniation" of inmate's back and upper torso, which caused inmate extreme, increasing pain which was successfully treated by the surgery); Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989) (objectively serious medical need existed where prisoner went more than 3 months without his dentures, resulting in severe pain, bleeding gums, broken and permanently damaged teeth, and weight loss due to inability to eat properly); Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (no objectively serious medical need where prisoner suffered from nausea, shakes, headache, and depressed appetite due to unresolved family stress).

Subjective Element — Deliberate Indifference

Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Wilhelm, 680 F.3d at 1122) (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. "Deliberate indifference is a high legal standard," Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and "[u]nder this standard, the prison official must not only `be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the inference, `" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). "A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment." Toguchi, 391 F.3d at 1060. "[E]ven gross negligence is insufficient to establish a constitutional violation." Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).

"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

2. Defendants' Position

a. Defendants Bremnar, Brookwalter, Peacock, Tyson, and Aspeitia-Fleming

Defendants argue that defendants Bremnar, Brookwalter, Peacock, Tyson, and Aspeitia-Fleming were not deliberately indifferent because Plaintiff had been evaluated and found to be free of injuries requiring further treatment. Defendants assert that Plaintiff was evaluated immediately before, and shortly after the escort at his request, by MTA Aspeitia-Fleming, and the MTA did not find during either examination the Plaintiff had more than superficial scrapes.

Defendants Bremnar, Brookwalter, Peacock, and Tyson also argue that their actions did not rise to the level of deliberate indifference, because they reasonably relied on MTA Aspeitia-Fleming's medical determination clearing Plaintiff to return to administrative segregation and his cell, when they escorted Plaintiff with assistance to his cell, ignoring Plaintiff's requests for additional medical care. Defendants argue that although Plaintiff disputes Aspeitia-Fleming's findings, he has not provided any evidence, besides his own opinion, that he required further medical care while he was in the holding cell, and that Plaintiff's dispute with Aspeitia-Fleming does not rise to the level of deliberate indifference. Defendants argue that custody staff, including Sergeants Bremnar, Brookwalter, and Peacock, and Captain Tyson, reasonably relied on this medical determination when, after they received notice that Plaintiff was medically cleared, they escorted Plaintiff with assistance to his cell and ignored Lacy's requests for additional medical care. Defendants argue that since Sergeants Bremnar, Brookwalter, and Peacock, and Captain Tyson, as custody staff, were unqualified to dispute MTA Aspeitia-Fleming's medical clearance, and Lacy had not shown obvious visible symptoms indicating a serious medical need, they did not act with deliberate indifference in ignoring Plaintiff's request for additional medical attention.

Moreover, subsequent medical treatment did not indicate the presence of a serious medical need during the escort. After Plaintiff arrived in his cell and requested additional medical evaluation, he was evaluated again by MTA Aspeitia-Fleming, who found no evidence of injury aside from Plaintiff's subjective complaints. Plaintiff was further evaluated by nursing staff later that day, treated for his subjective pain and his shoulder was x-rayed with a finding of no evidence of injury.

Defendants submit as evidence Plaintiff's deposition testimony, the declarations of defendants Aspeitia-Fleming, Brookwalter, Patel, and Tyson, and the declaration of Registered Nurse H. Tuhin [not a defendant].

After the escorts, at Plaintiff's cell

A. Yes.

(Depo. 69:18-24.)

(Depo. 70:5-10.)

MTA Aspeitia-Fleming's Declaration describing her exams of Plaintiff

(Aspeitia-Fleming Decl., ECF No. 121-2 ¶¶8, 9, 11, 13-17.)

(Depo. 39:7-14.)

I responded to him that I needed medical attention.

(Depo. 47:18-19.)

(Depo. 44:25-45:8.)

During the Second Escort

Defendant Brookwalter declared as follows:

(Brookwalter Decl., ECF No. 121-4 ¶¶4-7, 13.)

(Depo. 55:11-15.)

(Depo. 58:14-59:1.)

Defendant Tyson declared as follows:

(Tyson Decl., ECF No. 121-11 ¶¶10, 11.)

b. Defendant Patel

Defendant Patel argues that he provided adequate and appropriate treatment for Plaintiff's complaint of shoulder pain, offering Patel's declaration as evidence. Patel declares that he examined Plaintiff on March 20, 2006, May 30, 2006, and June 6, 2006. (Patel Decl., ECF No. 121-7 ¶2.) On March 20, 2006, Plaintiff told Patel that his left shoulder hurt. (Id. ¶¶3, 4.) He examined Plaintiff's shoulder and determined that a MRI was not necessary. (Id. ¶5.) He noted on the form that Plaintiff had a history of left shoulder pain since January 2006, but an x-ray of the shoulder area indicated it was normal. (Id.) Patel prescribed physical therapy. (Id.) On May 30, 2006, Patel examined Plaintiff in response to his requests for copies of his medication and physical therapy orders. (Id. ¶8.) Plaintiff told Patel he had tenderness in his shoulder, did not have a full range of motion, and that he did not have physical therapy. (Id. ¶9.) Patel examined Plaintiff and found subjective tenderness, a subjective lack of a full range of motion, and that Plaintiff had a high blood pressure reading. (Id. ¶10.) He reviewed Plaintiff's Physician Request for Services form, which indicated that Plaintiff was scheduled for physical therapy appointments on April 3, 2006 and April 10, 2006, but did not attend. (Id. ¶11.) The form stated that Plaintiff refused to attend the April 3, 2006 appointment and was rescheduled to April 10, 2006 but did not show up for the appointment. (Id. ¶¶11-13.) During the June 6, 2006 appointment, Plaintiff asked Patel if he knew when he was scheduled to see the physical therapist, and Patel called the physical therapist who said that Plaintiff had not attended his two scheduled appointment. (Id. ¶¶16, 19.) Plaintiff told Patel that he did not know about the appointments. (Id. ¶20.) Patel noted in Plaintiff's June 6, 2006 progress notes that he believed that most likely Plaintiff was not taken to the Correctional Treatment Center for physical therapy because he was in administrative segregation and the escorting officers may have been temporarily unavailable due to safety or security concerns; however, he does not independently recall the June 6 appointment or the security and staffing considerations present for Plaintiff's housing unit during that time, and he does not know why Plaintiff failed to attend the physical therapy appointments. (Id. ¶21.) Plaintiff complained of decreased range of motion in his left shoulder due to pain. (Id. ¶17.) Patel found that Plaintiff's blood pressure was 140/90 and ruled out hypertension as a cause for the elevated blood pressure. (Id. ¶17, 18.) Patel declares that he is not responsible for scheduling physical therapy appointments or arranging escorts of inmates to physical therapy appointments; this duty is handled by nursing staff and custody staff. (Id. ¶23.) Patel ordered Plaintiff a 90 day prescription for Indocin (indomethacin) and ducated Plaintiff for weekly blood pressure checks each week for found weeks, and a follow up visit in five weeks. (Id. ¶24.) Patel declares that in his medical opinion, Plaintiff did not require immediate or emergency medical attention or an urgent need for physical therapy for his physical condition when he examined Plaintiff on March 20, 2006, May 30, 2006, or June 6, 2006. (Id. ¶25.)

c. Defendants' Burden

The Court finds that defendants Bremnar, Brookwalter, Peacock, Tyson, Aspeitia-Fleming, and Patel have met their burden on summary judgment for Plaintiff's Eighth Amendment medical claims against them. There is no evidence that any of these defendants drew an inference before or during the second escort that Plaintiff had serious injuries or that Plaintiff faced a substantial risk of serious harm without immediate medical treatment. Moreover, they have submitted evidence indicating it was not their responsibility to provide medical treatment. The burden now shifts to Plaintiff to designate specific facts demonstrating the existence of genuine issues for trial on these claims.

3. Plaintiff's Opposition

Plaintiff argues that he had a serious medical need, because he had severe shoulder pain from a broken collarbone. Plaintiff's evidence is found in Plaintiff's deposition testimony, his declaration, and the declarations of inmate witnesses Armando Sanders and R. Brooks.

While being escorted from the dining hall to the program office, officers jerked Plaintiff's arms upwards above his shoulders, causing him to scream in pain. (Depo at 25:16-25, 29:20-25; Lacey Decl., ECF No 137 86 ¶6.) While in a holding cell outside the program office, plaintiff told MTA Aspeitia-Fleming that he had severe shoulder pain. (Lacey Decl. 86-87 ¶7.) While officers carried Plaintiff from the program office to Housing Unit Three, they violently jerked Plaintiff's arm upwards above his shoulders, causing him to scream in pain. (Id. at 87 ¶10.) While Plaintiff was carried to his cell, Officer Brookwalter violently jerked Plaintiff's left arm, causing him to scream in pain. (Id. at 87 ¶11; Decl. of Armando Sanders, ECF No. 137 at 96-97 ¶¶10, 11; Decl. of R. Brooks, ECF No. 137 at 102 ¶7.) On October 28, 2008, after Plaintiff was transferred from KVSP to Salinas Valley State Prison, Plaintiff received an x-ray of his left shoulder, which revealed evidence of a prior clavicle (collarbone) fracture. (Lacy Depo. at 86:12-87:5; Lacy Decl. at 89 ¶¶16, 17 & Attachment 1.)

Plaintiff also argues that defendants Aspeitia-Fleming, Bremnar, Brookwalter, Patel, Peacock, and T. Reyna were deliberately indifferent to his serious medical needs. Plaintiff asserts that while in the program office holding cell, he notified defendants Aspeitia-Fleming, Bremnar, and Peacock that he had severe shoulder pain and was light-headed and dizzy from being assaulted by staff. (Depo. at 33:22-34, 46:6-20; Lacy Decl. at 86-87 ¶7.) After examining Plaintiff, MTA Aspeitia-Fleming not only failed to document his injuries, but she cleared Plaintiff to be returned to his housing unit, stating that nothing was wrong with him. (Depo. at 35:7-12; Lacy Decl. at 86-87 ¶7, 8; Aspeitia-Fleming Decl., ECF No. 121-2 ¶10 & Exh. C.) Defendants Bremnar, Brookwalter, Peacock, and T. Reyna failed to obtain medical assistance for Plaintiff's injuries and then subjected him to further excessive force which served to exacerbate those injuries. (Depo. at 36:14-20, 39:13-19, 41:8-12; 44:25-46:20, 55:19-56:10, 58:14-22; Lacy Decl. ¶¶8-11, 21; Sanders Decl. ¶10-11; Brooks Decl. ¶7.)

Plaintiff argues that defendants Bremnar, Brookwalter, Peacock, and T. Reyna should not have relied on MTA Aspeitia-Fleming's medical evaluation of Plaintiff, because the MTA's duties did not include diagnosing and treating Plaintiff's shoulder injury and she was not capable of such. (Cal.Code Regs, tit. 15 §3354(a); Aspeitia-Fleming's Decl. ¶2.)

Plaintiff also argues that CDCR regulations required defendants Bremnar and Peacock to summon medical assistance for Plaintiff when they observed the MTA's failure to do so, and required defendant Brookwalter to summon medical assistance instead of responding to Plaintiff's complaint of shoulder pain by grabbing and jerking the injured arm. (Cal.Code Regs., tit. 15 §3271; Depo. at 41:8-12; Lacy Decl. ¶¶10-11; Sanders Decl. ¶10-11; Brooks Decl. ¶7.)

With respect to defendant Dr. Patel, Plaintiff argues that Patel's findings — that Plaintiff's complaints of pain and loss of function in his left shoulder were "subjective" and that an MRI, CT scan, or additional x-rays were not necessary — were medically unacceptable given Plaintiff's continued complaints of loss of function in his shoulder, and that Patel chose treatments for Plaintiff in conscious disregard of Plaintiff's health. As evidence, Plaintiff submits pages from the Merck Manual of Medical Information, 2d Home Edition (2003 ed.). (Merck Manual, Pltf's Exhibit J, ECF No. 137.) Page 350 of the Merck Manual states that "[s]mall or nondisplaced bone fractures are difficult to see on routine x-rays, and sometimes additional x-rays are taken a different angles." (Id. at p. 350) Page 351 states that "[f]ractures require immediate attention because they cause pain and loss of function" (Id. at p. 351.)

4. Discussion

The following facts are undisputed.4 On January 27, 2006, at KVSP, Plaintiff was handcuffed and escorted to the Program Office by Officers Correa and R. Reyna. (Defendants' Undisputed Facts (DUF) 12, 13; Depo. 29:7-25.)5 Plaintiff was medically evaluated by MTA Aspeitia-Fleming in the Program Office holding cell at approximately 9:50 a.m., for placement into administrative segregation (Ad-Seg). (DUF 15.) MTA Aspeitia-Fleming found that Plaintiff had an abrasion or scratch above his right eye and documented the evaluation on a CDC 7219 form. (DUF 16.) The MTA found that Plaintiff did not require further medical treatment and cleared Plaintiff for placement in Ad-Seg. (DUF 18; Depo. 35:7-12.)6

Plaintiff told Officer T. Reyna and another unidentified officer that he was dizzy and lightheaded, had been assaulted by Officer R. Reyna, and that he needed medical attention. (DUF 19, 20.) Plaintiff was carried face down by Officers T. Reyna, Bremnar, Brookwalter, and an unidentified officer, out of the Program Office, across the yard, to the track area in front of Housing Unit 3. (DUF 26, 28, 29.) Plaintiff said that he could not walk and needed medical attention. (DUF 34.) The officers carried Plaintiff inside the housing unit to his cell. (DUF 36.) Plaintiff's cell mate banged on the door and shouted "Man down!" (DUF 40.) Officer Hupp responded to Plaintiff's cell and Plaintiff told her he wanted medical attention for his "dislocated" shoulder. (DUF 41.) Officer Hupp reported Plaintiff's condition, and correctional staff assisted Plaintiff to his feet. (DUF 42, 43.) At approximately 11:00 a.m., Plaintiff was seen by MTA Aspeitia-Fleming in the medical clinic. (DUF 45.) The MTA found that Plaintiff had an abrasion or scratch above his right eye and documented the evaluation on a CDC 7219 form. (DUF 46.) Plaintiff told the MTA that he had allegations against staff, and that he got his arm twisted. (DUF 47.) Plaintiff was subsequently seen by Nurse Tuhin who examined Plaintiff and determined he was alert and oriented, and his vital signs were within normal limits. (DUF 51-53.) Plaintiff alleged that he had pain moving his shoulder on a nine out of ten scale. (DUF 57.) Nurse Tuhin assessed that Plaintiff had subjective pain without evidence of injury and contacted Dr. Akanno for recommendation of a pain medication. (DUF 58-59.) Dr. Akanno prescribed Motrin for Plaintiff's claimed pain and ordered x-rays for his left shoulder. (DUF 60.) Plaintiff was told the x-rays were negative. (DUF 61; Depo. 86:17-18.)7

On March 20, 2006, Plaintiff was examined by Dr. Patel, in response to Plaintiff's complaint of shoulder pain. (DUF 63.) During the examination, Plaintiff told Dr. Patel that his left shoulder hurt. (DUF 64.) Dr. Patel examined Plaintiff's shoulder, and determined that an MRI was not necessary. (DUF 65.) Dr. Patel observed that although Plaintiff had a history of left shoulder pain since January 2006, an x-ray of the left shoulder indicated it was normal. (Id.) Dr. Patel prescribed routine physical therapy and completed a Health Care Services Physician Request for Service form to facilitate that therapy. (DUF 66.)

On May 30, 2006, after Plaintiff requested copies of his medication and physical therapy orders, Dr. Patel saw Plaintiff. (DUF 67.) During the examination, Plaintiff told Dr. Patel that he had tenderness in his shoulder, did not have a range of full motion, and had not received his physical therapy. (DUF 68.) Dr. Patel examined Plaintiff and found subjective tenderness, a subjective lack of a full range of motion, and that Lacy had a high blood pressure reading. (DUF 69.) Since Plaintiff told Dr. Patel that he did not receive his physical therapy, Dr. Patel reviewed the Physician Request for Service form in Plaintiff's 2006 Unit Health Record. (DUF 70.) Dr. Patel observed that the "consultation" portion of the form had been completed, and it indicated that Plaintiff was scheduled for a physical therapy appointment on April 3, 2006, but Plaintiff refused to attend. (Id.) Dr. Patel observed that the April 3, 2006 appointment was rescheduled for April 10, 2006, and Plaintiff did not attend. (Id.) Dr. Patel did not author the "consultation" portion of the form. (Id.) Because Plaintiff alleged that he had not received physical therapy, Dr. Patel noted in the May 30, 2006 Outpatient Interdisciplinary Progress note that he would call the physical therapist at the specialty clinic to verify that Plaintiff was ducated for his physical therapy appointments. (DUF 71.)

On June 6, 2006, after Lacy requested a blood test, physical examination, and refill of his indomethacin prescription, Dr. Patel saw Plaintiff again. (DUF 72.) Plaintiff asked Dr. Patel during the examination if Dr. Patel knew when Plaintiff was scheduled to see the physical therapist. (DUF 73.) During the examination, Plaintiff told Dr. Patel that his left shoulder had a decreased range of motion due to pain. (DUF 74.) Dr. Patel found that Plaintiff's blood pressure was 140/90 and ruled out hypertension as a cause of the elevated blood pressure. (Id.) Because Plaintiff asked Dr. Patel if Dr. Patel knew when Plaintiff was scheduled to see a physical therapist, Dr. Patel called the physical therapist, who told him that Plaintiff did not attend two previously scheduled appointments. (DUF 75.) After Dr. Patel told Plaintiff that the physical therapist said that Plaintiff did not attend the scheduled appointments, Plaintiff told Dr. Patel that he did not know about the appointments. (DUF 76.) During the examination, Dr. Patel believed that most likely Plaintiff was not taken to the Correctional Treatment Center because he was in Ad-Seg and the escorting officers may have been temporarily unavailable due to safety or security concerns. (DUF 77.) But Dr. Patel does not recall the security and staffing considerations that may have existed in Plaintiff's housing unit on the dates when the physical therapy appointments were scheduled. (Id.) Moreover, Dr. Patel does not know why Plaintiff did not attend the physical therapy appointments on the dates they were scheduled. (Id.) Dr. Patel believes that nursing staff at the specialty clinic are responsible for scheduling physical therapy appointments, and custody staff is responsible for arranging appointments. (DUF 78.) Dr. Patel is not responsible for scheduling physical therapy appointments or arranging escorts of inmates to physical therapy appointments. (Id.) During the June 6, 2006 appointment, Dr. Patel ordered a 90 day prescription for Indocin (indomethacin) and ducated Plaintiff for weekly blood pressure checks each week for four weeks, with a follow up visit in five weeks. (DUF 79.) In Dr. Patel's medical opinion, Plaintiff did not require immediate or emergency medical attention, including an emergent or urgent need for physical therapy for his physical condition when Dr. Patel examined him on March 20, 2006, May 30, 2006, or June 6, 2006. (DUF 80.)8

The Court finds that Plaintiff had a serious medical need when he was placed in the Program Office holding cell, and afterward when he was escorted to his cell in the Housing Unit. Drawing all inferences in the light most favorable to Plaintiff, Plaintiff was suffering from a fractured clavicle, causing him severe and ongoing pain. There is no dispute that a reasonable doctor would find such a fracture in a patient to be important and worthy of comment or treatment.

However, the Court finds no conclusive evidence that Plaintiff's fracture was discoverable until after he was transferred from KVSP to Salinas Valley State Prison where he received additional x-rays showing the fracture.

Even assuming that Plaintiff had a fractured clavicle at the time of the events at issue, Defendants' actions do not support a claim of deliberate indifference. Evidence shows that Plaintiff received medical examinations and treatment for his complaints of shoulder pain. The undisputed facts show that Plaintiff was given multiple medical examinations in response to his complaints of pain and complaints that his arms had been twisted, x-rays by medical personnel, medications, and orders for physical therapy. During two examinations, MTA Aspeitia-Fleming found that Plaintiff's only injury was an abrasion or scratch above his right eye. (DUF 12, 13, 15, 16, 18.) When Plaintiff was returned to his cell and his cell mate yelled "Man Down," Officer Hupp [not a defendant] responded and reported Plaintiff's condition to authorities, (DUF 41, 42, 43), after which the MTA gave Plaintiff his second examination. (DUF 45, 46.) After Plaintiff complained that his arm had been twisted by staff, he was seen by Nurse Tuhin [not a defendant] who determined that Plaintiff only had subjective pain without evidence of injury. (DUF 51-53, 58-59.) Nurse Tuhin contacted Dr. Akanno [not a defendant] for a recommendation of pain medication, and Dr. Akanno prescribed Motrin and ordered x-rays for Plaintiff's left shoulder, which were found to be negative. (DUF 59, 60, 61; Decl. of Dr. Akanno, ECF No. 121-1 ¶7 & Attachment 1.) Plaintiff was later seen by Dr. Patel three times between March 20 and June 6, 2006, who found that Plaintiff's x-rays were negative, prescribed physical therapy and the medication indomethacin, monitored Plaintiff's blood pressure, and followed up in an attempt to ascertain why Plaintiff had not received physical therapy as ordered. (DUF 63-77.)

Plaintiff's allegation in the Second Amended Complaint — that MTA Aspeitia-Fleming told him the reason she didn't provide proper medical treatment was because he was a "rat" and on a Protective Custody yard9 — gives the Court pause, because such a statement is evidence that the MTA acted with deliberate indifference to Plaintiff's medical needs. However, since this allegation was not addressed in the motion for summary judgment, and evidence shows that MTA Aspeitia-Fleming provided Plaintiff with two medical examinations in response to his symptoms and referred him to Nurse Tuhin for further evaluation, summary judgment on Plaintiff's claims against the MTA is appropriate.

Plaintiff argues that according to the Merck Manual, his treatment at KVSP was not medically acceptable. To prevail on this theory, Plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances. Jackson, 90 F.3d at 332. However, the treatment discussed in the Merck Manual assumes that the doctor knows the patient has a fractured clavicle, which was not the case for Plaintiff when he was being treated at KVSP. Plaintiff also states his belief that the reports of negative findings in the x-rays were part of a cover-up at KVSP, (Depo. at 86:12-87:5), but Plaintiff shows no evidence of a cover-up. With respect to the delay in Plaintiff's treatment for a broken clavicle, Plaintiff shows no evidence that the delay was a result of deliberate indifference by any of the Defendants.

To the extent that Plaintiff claims that Dr. Patel was deliberately indifferent because Plaintiff did not receive physical therapy, evidence shows that Dr. Patel ordered the physical therapy and reasonably assumed that the nursing staff had scheduled the appointments and correctional staff would escort Plaintiff to the appointments, as these duties were not Dr. Patel's responsibilities. When Plaintiff informed Dr. Patel that he had not gone to physical therapy, Dr. Patel followed up in an attempt to ascertain what had happened and re-ordered the physical therapy. Under these facts, there is no evidence that Dr. Patel acted against Plaintiff with deliberate indifference.

There also is no evidence that defendants Bremnar, Brookwalter, Peacock, or Tyson knew that Plaintiff was at risk for serious harm without further medical attention. Even if these defendants did not rely on the results of Plaintiff's examinations by the MTA, there is no evidence that any of them had the requisite state of mind for deliberately indifference. There is no evidence that that they believed Plaintiff's pain was severe or that Plaintiff had fractured his clavicle.

Based on the foregoing, Plaintiff has not shown a genuine dispute of material fact for trial on this issue, and defendants Bremnar, Brookwalter, Peacock, Tyson, and Aspeitia-Fleming are entitled to summary judgment on Plaintiff's medical claim against them.

V. QUALIFIED IMMUNITY

Finally, Defendants argue that they are entitled to qualified immunity. Qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citation and internal quotations omitted). Qualified immunity shields government officials from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (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 v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808 (2009), and it protects "all but the plainly incompetent or those who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986).

In resolving the claim of qualified immunity, the Court must determine whether, taken in the light most favorable to Plaintiff, Defendants' conduct violated a constitutional right, and if so, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001); Mueller, 576 F.3d at 993. While often beneficial to address in that order, the Court has discretion to address the two-step inquiry in the order it deems most suitable under the circumstances. Pearson, 555 U.S. at 236 (overruling holding in Saucier that the two-step inquiry must be conducted in that order, and the second step is reached only if the court first finds a constitutional violation); Mueller, 576 F.3d at 993-94.

As discussed above, the Court has found that all of the Defendants are entitled to summary judgment on Plaintiff's medical claim, and that defendant Peacock is entitled to summary judgment on Plaintiff's excessive force claim. Therefore, at issue are Plaintiff's excessive force claim against defendants T. Reyna, N. Correa, Bremnar, and Brookwalter; and Plaintiff's claim that defendants Peacock and Tyson failed to protect him.

Defendants T. Reyna, Correa, Bremnar, and Brookwalter argue that they did not violate a constitutional right, because there is no evidence that they used excessive force against Plaintiff, and they acted reasonably under the circumstances of the escort. Defendants argue that they acted sparingly and reasonably to escort Plaintiff to the holding cell, to pick Plaintiff up from his holding cell after he was medically evaluated, and to carry him to his cell when he refused to obey an order to walk. Defendants argue that because Plaintiff disregarded Sergeant Brookwalter's order to stand up, and Plaintiff needed to be moved from the holding cell to his cell, it was reasonable to carry him there when he would not walk on his own. Because the escort was reasonable, Defendants argue that defendant Tyson had no need to intervene to stop use of excessive force.

The Court has found that genuine disputed facts remain for trial on Plaintiff's excessive force claims and failure to protect claims. When taken in the light most favorable to Plaintiff, the facts demonstrate that Defendant's actions violated Plaintiff's rights to be protected and to be free from excessive force.

The incident at issue in Plaintiff's complaint allegedly occurred in January 2006. The law was clearly established at that time that an officer may not use excessive force against an inmate. The law concerning Eighth Amendment protections against excessive force was established in Whitley, 475 U.S. at 320-32 (factors affecting whether force is excessive include "the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted . . . But 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 the facts known to them, and any efforts made to temper the severity of a forceful response.") (internal quotation and citation omitted).

It was also clearly established, as early as June 1994, that "prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners," and that a prison official violates an inmate's Eighth Amendment rights when the prison official exhibits deliberate indifference to the inmate's safety. Farmer, 511 U.S. at 833-34. By 1996, the Ninth Circuit had made clear that prison officials have a duty to "take reasonable measures to protect inmates from violence at the hands of other prisoners." Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001). These and other cases had established that the failure of a prison official to respond to a known, credible threat to an inmate's safety constituted a violation of the inmate's Eighth Amendment rights. See Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir. 1986); Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).

Granting dismissal on the ground of qualified immunity is "improper if, under the plaintiff's version of the facts, and in light of the clearly established law, a reasonable officer could not have believed his conduct was lawful." Schwenk v. Hartford, 204 F.3d 1187, 1196 (2000). The Court finds that, at the time of the alleged attacks on Plaintiff, the law was sufficiently clearly established to place a reasonable correctional officer on notice that harming a prisoner without a disciplinary or other permissible purpose violates the Eighth Amendment. The Court also finds that a reasonable officer in the circumstances of defendants Peacock and Tyson would have known that failing to protect an inmate from an unprovoked violent attack by prison staff, when the officer had occasion to intercede, is unlawful. Accordingly, the Court finds that Defendants are not entitled to dismissal of the claims against them based on qualified immunity.

VI. CONCLUSION AND RECOMMENDATIONS

Based on the foregoing, the Court finds that no genuine issues of material fact remain for trial on Plaintiff's medical claims and defendant Peacock's liability for failure to protect Plaintiff under the Eighth Amendment. Therefore, Defendants are entitled to summary judgment on these claims.

However, the Court finds disputed questions of fact that preclude summary judgment on Plaintiff's excessive force claims against defendants T. Reyna, Correa, Bremnar, and Brookwalter, and Plaintiff's claims that defendants Peacock and Tyson failed to protect him, in violation of the Eighth Amendment. The Court also finds that Defendants are not entitled to qualified immunity for these claims pending against them.

Accordingly IT IS HEREBY RECOMMENDED that:

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)(l). Within thirty (30) days after being served with these findings and recommendations, any party may file written objections with the court. 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 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.