Opinion
6:20-CV-00911-YY
03-28-2022
PEDRO SEGURA, SR. Plaintiff, v. SGT. MILLER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff, an inmate at the Marion County Jail, brings this action against Sgt. Jared Miller, Dep. Cody Crites, Dep. Lawrence Omonua, Sgt. R. Cherno, Dep. C. Hernandez, Dep. D. Lilly, Dep. J. Stoltz, Dep. Towers, and the “Marion County Sheriff's Office, Jail” (collectively “defendants”). He alleges violations of his Fifth, Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Am. Compl. 3, ECF 44. This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Defendants have filed a motion for summary judgment on all claims. ECF 100. For the reasons discussed below, the motion should be GRANTED with respect to plaintiff's Fifth and
Eighth Amendment claims and Fourteenth Amendment claim related to a failure to intervene, and DENIED with respect to plaintiff's Fourteenth Amendment claim related to excessive force.
I. Background Facts
Plaintiff is a pre-trial detainee at the Marion County Jail (“MCJ”). Glaccum Decl., Ex. A at 1, ECF 101. On March 27, 2020, a fight broke out in the C-5 Unit (“the Unit”), one of the MCJ's housing divisions and the unit in which plaintiff was housed. MCJ officers revoked the dayroom privileges of the Unit's inmates pending an investigation of the fight. Crites Decl. ¶ 4, ECF 103. The following day, March 28, 2020, inmates in the Unit protested the loss of their privileges by covering their cell windows with toilet paper. Glaccum Decl., Ex. B at 1, ECF 34. MCJ staff, recognizing that covered windows prevented jail officers from observing cell interiors or performing welfare checks, decided to remove the protest's organizers, including plaintiff, from the Unit. Id. Before arriving at plaintiff's cell, MCJ staff were able to remove two other protest leaders without incident. Id.
Plaintiff attests that Dep. Hernandez arrived at his cell first and requested the toilet paper to be taken down, suggesting in Spanish that other sergeants were “just looking to beat someone up, please put it down.” Segura Decl. 5, ECF 45. Plaintiff claims he told his cellmate to take down the toilet paper, and Dep. Hernandez asked plaintiff to communicate his message to other inmates. Id. at 5-6. Plaintiff claims he agreed with this request, and stepped out of the cell to be handcuffed. Id. However, as plaintiff was being handcuffed, he noticed that Sgt. Miller was “getting [aggravated]” and decided he no longer wished to pass Dep. Hernandez's message to other inmates. Id. at 6. Plaintiff thus stepped back into his cell, still handcuffed. Id.
Plaintiff alleges that as he stepped back into his cell, Sgt. Miller exclaimed something like “take him to [segregation]” and immediately followed him in. Id. Plaintiff describes the next seconds as follows:
When [Sgt. Miller] [came] in . . . he was getting ready to hit me with his fist. I was still handcuff[ed] behind by back, so I got ready for the impact of this fist. I just put down my head to brace for the hit. He hit me in the face . . .
[Sgt. Miller] and the other [deputies] [threw] me [to] the ground when I was still cuffed up and not resisting at all. They all [were] kicking me and hitting with their fist. I was telling [them] . . . “I'm not resisting” [and] “to stop hitting me.”
Then they [dragged] me out of my cell . . . I tried to walk, but they [were dragging] me. I don't know if they [were] hitting me as [I was being dragged]. I heard inmates saying, “he's not resisting” . . . “stop hitting and kicking him.” Other sheriffs did not stop the abuse, they just [watched]. I was by the telephones. I was a [little] out of it because [of] what just happened to me....I was in pain. ...
I was handcuff[ed] behind my back the [w]hole time everything happened to me. I told Dep. Towers and Dep. Omonua that I was in pain and my right hip hurt . . . I [saw] Dep. Omonua twisting the handcuff when I was by the phone, and that was also happening in the cell....Id. at 6-8 (quotation marks omitted).
Plaintiff adds that after the incident, Deps. Towers and Omonua helped him up and brought him to intake. Id. at 8. As he received medical attention from a “Nurse Bryan” (a nonparty to this case), plaintiff alleges that he asked Sgt. Cherno to take pictures of his injuries; Sgt. Cherno did not grant this request. Id. at 10-11. While Nurse Bryan cleared him, plaintiff “was in so much pain” that evening and sought additional medical assistance. Id. at 13. Plaintiff recounts that the nurse who treated him “knew that [he] was not in good shape”; his body was “red” and “bruise[d]” and his “thermal” (presumably a thermal piece of clothing) had a “boot mark” and “black marks all over it.” Id. at 14.
Plaintiff claims this incident led to pain that forced him to see specialists and undergo x-rays, physical exams, blood work, and MRIs. Id. at 15-16. He specifically contends that he “will need to get surgery on my right hip because it's in pain all the time.” Id. He also alleges that he has “marks” [presumably scars] on his hands and wrists. Id. Plaintiff seeks compensation for all his medical expenses, seven-and-a-half million dollars, “apology letters from all involved, ” and for the “court and county to fire any officer that is found guilty.” Am. Compl. 6, ECF 44.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. PRO. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
III. Fourteenth Amendment Excessive Force Claim
A. Legal Standard
To prove an excessive force claim under the Fourteenth Amendment, an inmate must show that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472-73 (2015). The Kingsley court noted:
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Id. at 2473 (citation omitted). “Courts must evaluate the case from the perspective of a reasonable officer on the scene at the time of the event, and not with the 20/20 vision of hindsight.” Quiroga v. King, No. 1:15-cv-01697-AWI-MJS (PC), 2016 WL 2609805, at *3 (E.D. Cal. May 6, 2016) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “Courts must also balance the state's legitimate interest in maintaining order in the facility in which the individual is detained, and, where appropriate, defer to the ‘policies and practices that in th[e] judgment' of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.'” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)). “[A]lthough reasonableness is normally a jury question, defendants can still win on summary judgment if the district court concludes after resolving all facts in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.” Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995) (citation and quotation marks omitted).
B. Sgt. Miller, Dep. Crites, Dep. Omonua, and Dep. Stoltz
In his Amended Complaint, plaintiff names three officers who allegedly contributed to his injuries. Am. Compl. 3-4, ECF 44. Specifically, he claims that: Sgt. Miller followed him into his cell, punched him in the face, and threw him to the ground; Dept. Crites kicked him in the face while he was on the ground; and Dept. Omonua twisted the handcuffs binding his wrists as he was being escorted away from the cell. Id. Plaintiff also alleges that “other [deputies] [threw]” him to the ground and kicked and hit him during the scuffle; in his Opposition to defendants' Motion, he identified one such person as Dep. Stoltz. Id. at 4; Opp. 13, ECF 111. Plaintiff maintains that throughout the entire event, he was handcuffed and not resisting. Am. Compl. 4, ECF 44.
Defendants concede that they applied force to plaintiff, but offer different accounts of what transpired. Mot. 10, ECF 100. Sgt. Miller declares that while he did punch plaintiff in his cell, he did so because plaintiff “put his head down and rushed toward me. It appeared . . . that he was trying to rush through me to get out of the cell.” Miller Decl. ¶ 7, ECF 102. Sgt. Miller also declares that he dealt multiple “focused blow[s]” to plaintiff to gain control of him outside the cell. Id. ¶¶ 9-10. Dept. Crites alleges that he only pressed his knee “against [plaintiff's] right ear to pin [plaintiff's] head to the ground and prevent [plaintiff] from moving”; he denies ever kicking plaintiff. Crites Decl. ¶ 7, ECF 103. In a post-incident report, Dep. Omonua wrote that he “delivered a focus[ed] blow to [plaintiff's] upper stomach/lower chest area” in the cell and that plaintiff resisted by “pushing and pulling towards [Dep.] Crites and I (with hand restraints still on)”; he does not mention that he twisted the handcuffs in any form. Burgess Decl., Ex. E at 1, ECF 112. Dep. Stoltz wrote in his post-incident report that he “kicked up [his] front leg to stop” plaintiff from resisting. Burgess Decl., Ex. D at 2, ECF 112.
Notably, plaintiff has raised issues and discrepancies that, if true, cast significant doubt on the validity and truthfulness of these declarations. See Opp. 4-8, ECF 111.
In addition to these clarifying points, defendants offer several arguments, invoking the Kingsley factors, that made their actions “objectively reasonable, given the circumstances.” Mot. 10, ECF 100. They allege that plaintiff's actions “instigated a need for force” because he “went back into his cell[] without permission” and “prepared to continue his resistance” by lowering his head as Sgt. Miller entered the cell. Id. at 10-11. Defendants also claim that they attempted to “limit the amount of force, ” and point to the fact they were able to successfully remove two other inmates from the Unit without incident before confronting plaintiff. Id. at 11-12. They additionally submit that plaintiff presented a “severe security problem” because he “was in [MCJ] for riot, assault, and murder; was a known gang member; and had been disciplined multiple times [at MCJ] for fighting.” Id. at 12. Finally, they claim that plaintiff was a “reasonably perceived threat” because plaintiff's “criminal history, disciplinary history, and gang affiliation” led them to believe that he could harm his cellmate or barricade himself in his cell. Id.
That all said, there are two Kingsley factors that remain factually unresolved. First, was plaintiff resisting in the seconds before Sgt. Miller punched him or after plaintiff was brought out of his cell? Defendants contends plaintiff was, and that resistance, combined with plaintiff's perceived history of violence, led them to apply force and restrain plaintiff. Miller Decl. ¶ 7, ECF 102. But plaintiff disputes this account, alleging that he was handcuffed and not resisting at all. Both parties have submitted declarations suggesting that their respective side of the story is accurate: for example, Dep. Crites declares that plaintiff “attempted to kick the cell door . . . into [Sgt. Miller] and “struggle[d] against several staff members.” Crites Decl. ¶ 2, ECF 103. Meanwhile, plaintiff's cellmate claims that plaintiff “did not raise his voice, ” “walked back into the cell with his hand cuffed behind his back, ” and “was not moving or resisting the officers” either inside or outside the cell. Jiminez Decl. ¶¶ 4-5, ECF 122. And the security camera footage does not shed any light as to which version of events is correct. The footage does not capture any of the events within plaintiff's cell; it only shows plaintiff walking back inside his cell with handcuffs, Sgt. Miller following him, a swarm of officers running into the cell a few seconds later, and then, in the next video, plaintiff being dragged out of his cell. See generally DVD, Video 1-2, ECF 115. In short, the key question of whether plaintiff was resisting remains in dispute.
Second, what was the extent of plaintiff's injuries? Defendants posit that plaintiff's injuries were minimal, pointing to the fact that the individual who treated plaintiff cleared him to return to his cell. Opp. 11, ECF 100. Plaintiff, however, has offered uncontroverted evidence in support of a number of points: (1) that he sought medical attention again that evening; (2) that a different attending nurse “knew [he] was in bad shape”; (3) that he had “bruise[s]” and “red[ness]” on his body and a “boot mark” on his thermal sweater; and (4) that he has had to see outside medical professionals for x-rays, blood work, and physical exams as a result of the incident. Segura Decl. 13-16, ECF 45. And numerous inmates have submitted declarations in support of plaintiff's points. For example, many have declared that they observed “marks” (presumably scars or deep cuts from the incident) on plaintiff's body. See, e.g., Prueti Decl., ECF 12. A couple of inmates who knew plaintiff before the incident recall seeing no such marks prior to the incident. See, e.g., Arzola-Ortego Decl., ECF 22; Baker Decl., ECF 23. And other inmates corroborate that plaintiff went to outside facilities to seek assistance for chronic pain related to the incident. See, e.g., Clark Decl., ECF 27; Garcia Decl., ECF 28.
These unresolved Kingsley factors are critical to determining whether defendants acted unreasonably in applying force to plaintiff. First, courts have repeatedly disavowed the use of force after an inmate has been subdued. See, e.g., Hogue v. Ada County, No. 1:13-cv-00100-CWD, 2014 WL 7722999, at *5 (D. Id. Dec. 12, 2014) (holding there was “little justification” for punching handcuffed inmate in face and ribs, thereby finding inmate sufficiently alleged excessive force claim); Cotton v. Donner, No. C 06-0862 MJJ (PR), 2007 WL 1031260, at *5 (N.D. Cal. Mar. 30, 2007) (holding that punching a subdued inmate three times would constitute excessive force). “A triable issue of fact exists as to excessive force if, viewing the evidence in the light most favorable to the plaintiff, it appears that officers used excessive force on an arrestee after he has surrendered, or is otherwise helpless, and is under the complete control of the officers.” DiBiasi v. Starbucks Corp., No. CV-07-276-LRS, 2009 WL 1505379, at *12 (E.D. Wash. May 22, 2009), rev'd on other grounds, 414 Fed.Appx. 948 (9th Cir. 2011) (citing Barnard v. Las Vegas Metro. Police Dep't, 310 Fed.Appx. 990 (9th Cir. 2009)).
Here, defendants allege plaintiff was actively resisting and refusing to follow directions. But on summary judgment, plaintiff's testimony must be accepted as true. See Chong, 152 F.Supp.3d at 1319 (holding the court must accept plaintiff's testimony as true on summary judgment). Thus, there is a genuine issue of material fact surrounding whether plaintiff was resisting during the incident, and it is for a jury to decide whether defendants' use of force was objectively reasonable under the circumstances. See Alexander, 64 F.3d at 1322 (“reasonableness is normally a jury question”).
Next, the extent of plaintiff's injury must also be considered. Defendants emphasize the “minimal” nature of plaintiff's injuries, noting that he was immediately treated and released by an attending nurse. Opp. 11, ECF 100. But this is not dispositive for two reasons. First, as discussed above, plaintiff alleges he has had to seek outpatient support for pain related to the incident. Segura Decl. 15-16, ECF 45. Moreover, even if plaintiff only sustained minor injuries, “[a]n 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.” Wilkins v.Gaddy, 559 U.S. 34, 38 (2010); see also Williams, 180 F.3d at 704 (“although suffering from dizziness, loss of breath, and coughing are not significant injuries, combined, they qualify as a cognizable injury when the victim is maliciously assaulted by a police officer”). Put differently, “it is error to dismiss such a claim based “on the supposedly de minimis nature of [a plaintiff's] injuries.” Wilkins, 559 U.S. at 40.
Lastly, defendants allege they are entitled to qualified immunity. Opp. 14, ECF 100. “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as 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) (citation omitted). “In determining whether an officer is entitled to qualified immunity, [the court] employs a two-step test: first, [the court] decides whether the officer violated a plaintiff's constitutional right; if the answer to that inquiry is ‘yes,' [the court] proceeds to determine whether the constitutional right was ‘clearly established in light of the specific context of the case' at the time of the events in question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)).
Before the Supreme Court decided Kingsley, the controlling law regarding use of force against pretrial detainees was the “malicious and sadistic standard.” See Young v. Wolfe, 478 Fed.Appx. 354, 356 (9th Cir. 2012) (citing Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)). Under that standard, use of force was not excessive “if it [was] applied in a good faith effort to restore discipline and order and not ‘maliciously and sadistically for the very purpose of causing harm.'” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (citing Whitley, 475 U.S. at 32021). The court considered five factors: (1) the inmate's injury; (2) the need to use force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the defendant; and (5) any efforts made to temper the severity of a forceful response. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing Hudson v. McMillan, 503 U.S. 1, 7 (1992)).
That said, clearly established law at the time made clear that “force is only justified when there is a need for force.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007) (citing Graham, 490 U.S. at)). Thus, “officers [could not] use excessive force on an arrestee after he or she ha[d] surrendered, or [was] otherwise helpless, and [was] under complete control of the officers.” Barnard, 310 Fed.Appx. at 992 (citing Graham, 490 U.S. 386). Defendants are not entitled to qualified immunity at this stage because it is unresolved whether plaintiff was actually resisting or fighting back at the time they applied force to his body.
C. Remaining Officers
Defendants also move for summary judgment on any excessive force claims against Sgt. Cherno, Dep. Hernandez, Dep. Lilly, and Dep. Towers because plaintiff failed “to provide specific facts to support a claim of excessive force by those defendants.” Mot. 10, ECF 100. Plaintiff opposes this action, noting that (1) he was a pro se litigant at the time he filed suit, (2) defendants are “not confused about the claims and have been on notice all along as to the nature of the claims, ” and (3) amendment is a better alternative than dismissal. Opp. 12-13, ECF 111.
Plaintiff's arguments are significantly undercut by a number of facts in the record. First, while plaintiff was pro se at the time he filed his Amended Complaint, he has been represented by counsel since February 2021. See ECF 91. In the year since he obtained representation, plaintiff has not submitted a Second Amended Complaint or clarified which other defendants, if any, are implicated in his excessive force claim. Second, while defendants may be aware of the nature of plaintiff's claims, there is no evidence in either the Amended Complaint or other documents suggesting that Sgt. Cherno and Deps. Hernandez, Lilly, and Towers used any force on plaintiff. And third, plaintiff appears to concede this in his Opposition to defendants' Motion for Summary Judgment: he specifically alleges that “Cherno, Towers, Lilly, and Hernandez failed to intervene and stop the abuse”-implying that they were not direct participants in said abuse. Opp. 13, ECF 111 (emphasis added). Thus, to the extent that plaintiff alleges claims against other officers related to excessive force, defendant is entitled to summary judgment on those claims.
III. Fourteenth Amendment Failure to Intervene Claim
A. Legal Standards
“[A] jail official's failure to intervene to prevent a constitutional violation may be a basis for liability.” Garcia v. Tulare Cty. Main Jail, No. 1:14-CV-00476-BAM(PC), 2017 WL 6055829, at *5 (E.D. Cal. Dec. 7, 2017), report and recommendation adopted, 2018 WL 317779 (E.D. Cal. Jan. 8, 2018) (citing Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995)). An “officer who does not personally apply force may nonetheless be held liable for excessive force where the officer had an opportunity to intervene and prevent or curtail the violation (e.g., enough time to observe what was happening and intervene to stop it), but failed to do so.” Sturgis v. Brady, 2016 WL 924859 *8, (N.D. Cal. Mar. 11, 2016) (citing Robins, 60 F.3d at 1442).
B. Analysis
Defendants have moved for summary judgment on plaintiff's failure to intervene claim on two bases: (1) there was no underlying violation, and thus nothing to intervene in; and (2) plaintiff failed to specify “which deputies were in the cell, at what time, and what they observed” and “will be unable to meet his burden to show that any particular defendant observed the specific use of force in question.” Mot. 14, ECF 100. Both responses are unpersuasive. First, as discussed above, there is a genuine issue of material fact regarding whether Sgt. Miller, Dep. Crites, Dep. Omonua, and Dep. Stoltz committed a constitutional violation by initiating illegal physical contact with and continuing to kick, punch, and apply force to plaintiff while plaintiff was handcuffed and not resisting.
Second, surveillance camera footage offers the possibility that plaintiff will be able to demonstrate which officers observed the incident, yet failed to intervene. The footage shows several sergeants and deputies surrounding plaintiff in a circle as one or two officers appeared to kick and kneel on plaintiff's body. See DVD, Video 3, at 12:53:57-12:14:06, ECF 115. Due to the poor video quality and the positioning of each officer, it is difficult to see which exact officers struck or applied force to plaintiff as he laid on the ground. However, it appears that one officer is kneeling on top of plaintiff at the start of the video (12:53:58) while another kicks his legs (12:54:05). Id. Throughout the entire ten-second video, plaintiff remains pinned to the ground and does not appear to move at all. Id. Officers were certainly close enough to observe their colleagues kicking and kneeling on plaintiff as he remained still. Thus, while the defendants may allege that plaintiff will be unable to demonstrate which officers saw what specific acts, the security camera footage disproves this argument.
These timestamps do not refer to actual hours, minutes, and seconds within the duration of the video, but rather the time shown in the security footage itself.
Defendants contend that they are nevertheless entitled to qualified immunity because it cannot be said that they violated any clearly established law. While it is true, as plaintiff notes, that “police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen . . . if they had an opportunity to intercede, ” Cunningham v.Gates, 229 F.3d 1271, 1289 (9th Cir. 2000), the Ninth Circuit clarified on December 7, 2020, that “[o]ur precedent does not clearly establish when an officer has a realistic opportunity to intercede.” Penaloza v. City of Rialto, 836 Fed.Appx. 547, 549 (9th Cir. 2020) (quotation removed). Thus, regardless of whether Sgt. Miller, Dep. Crites, Dep. Omonua, and Dep. Stoltz violated plaintiff's constitutional rights by failing to intervene in the incident, plaintiff cannot meet his burden of demonstrating that the law was clearly established on March 28, 2020, as to when an officer has such a duty to intervene. Accordingly, defendants are entitled to qualified immunity as to plaintiff's failure to intervene claim.
IV. Fifth and Eighth Amendment Claims
Defendant has moved for summary judgment on plaintiff's claims under the Fifth and Eighth Amendment. Mot. 6, ECF 100. Plaintiff agrees that his claims under the Fifth and Eighth Amendment should be dismissed. Opp. 2, ECF 111.
RECOMMENDATIONS
For the reasons discussed herein, defendants' Motion for Summary Judgment (ECF 100) should be GRANTED with respect to plaintiff's Fifth and Eighth Amendment claims and Fourteenth Amendment claim related to a failure to intervene, and otherwise DENIED as to plaintiff's Fourteenth Amendment claim regarding use of excessive force.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, April 11, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.