Banks v. Lombardo

Opinion

5 * * *

6 JAMES VINCENT BANKS, Case No. 2:20-cv-00556-MMD-NJK

7 Plaintiff, ORDER 8

9 v.

10 JOSEPH LOMBARDO, et al.,

11 Defendants.

12 14 Pro se Plaintiff James Vincent Banks filed a civil rights complaint under 42 U.S.C. 15 § 1983 against Defendants Daniel Holm, Russell Thompson, Ryan Heiss, Michael 16 Riesepow, David Bryan, and Parker Miller (collectively, “Defendants”1) based on events 17 that occurred while he was in pretrial detention at the Clark County Detention Center 18 (“CCDC”). (ECF No. 1-1 (“Complaint”).) The Court previously screened the Complaint 19 under 28 U.S.C. § 1915A. (ECF No. 5.) Before the Court are Defendants’ motion for 20 summary judgment on Plaintiff’s remaining three claims (ECF No. 111 (“Motion”)2) and 21

1The Court previously granted as unopposed Defendants Gregory Bryan and 22 James Williamson’s motions to dismiss all claims against them under Local Rule 7-2(d). (ECF Nos. 32, 35, 104, 116.) Thus, the Court dismissed Plaintiff’s Eighth Amendment 23 deliberate indifference to a serious medical need claim against Bryan and Fourteenth Amendment equal protection and due process claims against Williamson. However, 24 Local Rule 7-2(d) creates an exception for motions filed under Fed. R. Civ. P. 56. For those motions, such as Defendants’ Motion, the Court independently reviews the motion 25 and supporting evidence even if the motion is unopposed.

26 2Plaintiff did not file a response to the Motion, and Defendants in turn have not filed a reply. Nevertheless, given Plaintiff’s pro se status, the Court will liberally construe 27 Plaintiff’s motion to strike (ECF No. 122) and motion to stay (ECF No. 134) as a collective response to Defendants’ Motion. 28 1 four pending motions filed by Plaintiff (ECF Nos. 122, 134, 135, 141). For the reasons 2 explained below, the Court grants Defendants’ Motion and denies Plaintiff’s pending 3 motions. 5 The following facts are undisputed unless otherwise noted. 6 At the time of the events in question, Plaintiff was a pretrial detainee at CCDC in 7 relation to a violent felony offense. (ECF No. 111-4 at 15.) Before his booking in 2016, 8 Plaintiff had been subject to “2 to 3” total violent felony charges in the previous 15 years. 9 (Id. at 16.) While in pretrial detention, from August 2016 through March 2018, Plaintiff 10 repeatedly engaged in physical violence with other inmates and verbal threats against 11 staff (ECF Nos. 111-1 at 14; 111-10 at 3-5; 111-11 at 4; 111-12 at 12-13, 15-16.) Given 12 Plaintiff’s “continuous unsatisfactory history while housed in [CCDC],” Defendant Holm 13 “believe[d] it [wa]s only a matter of time before this inmate attacks and seriously injur[e]s 14 an officer,” and thus recommended relocating Plaintiff to maximum-security housing. 15 (ECF No. 111-10 at 5.) 16 On March 15, 2018, Plaintiff told a CCDC officer during the meal break that his 17 kosher meal was noncompliant because it was “missing his protein.” (Id. at 2-3.). Holm 18 later reviewed the surveillance footage and found that Plaintiff had hidden the allegedly 19 missing food in his shirt pocket before complaining to CCDC staff.4 (Id. at 3, 5.) 20 A. The March 16, 2018 Incident 21 The next day, on March 16, 2018, Plaintiff again complained of missing protein in 22 his kosher meal. (Id. at 3.) But this time Plaintiff’s complaint was “disruptive” and 23

3Defendants responded to all three of Plaintiff’s pending motions. (ECF Nos. 128, 24 136, 137.) Plaintiff, however, has not filed any replies.

25 4Defendants dispute that Plaintiff’s kosher meal was missing “protein” on March 15, 2018. (ECF No. 111 at 7-8.) They specifically point to surveillance footage during the 26 March 15 meal break, which appears to show Plaintiff (a) taking food from his meal container and placing it in his shirt pocket and (b) moving food from another inmate’s 27 food tray into his own container before complaining to an officer. (ECF Nos. 111-16 at 09:32:45-09:33:00, 09:33:50-09:34:10; 111-17 at 2-3.) 28 1 included “loud disrespectful outbursts,” a demand to speak with Holm, a disregard for an 2 officer’s order to stay seated, and an attempt to “get everyone with similar [meal] trays to 3 follow his lead and agree to his cause and protest alongside him.” (ECF Nos. 111-10 at 4 3; 111-12 at 5.) Holm then removed Plaintiff from the meal area and, with help from 5 Defendants Thompson, Heiss, Riesepow, Bryan, and Miller, escorted Plaintiff to another 6 housing unit to initiate disciplinary charges (“March 16 Incident” or “Incident”). (ECF Nos. 7 111-11 at 3-4; 111-12 at 5-7.) 8 According to Thompson, during the escort Plaintiff “was threatening the 9 supervisors and officers who were transporting him” and “made it clear that when his 10 hand restraints were removed, he was going to attack Sgt. Holm.” (ECF No. 111-10 at 11 4.) While walking in restraints, Plaintiff “tried to set the pace by pulling the escorting 12 officers.” (Id. at 5.) Thompson ordered Plaintiff to slow his pace, to which Plaintiff replied, 13 “I walk at my own pace. You keep up with me.” (Id. at 4.) Around this time, Plaintiff also 14 “was talking over” Holm, insulted Holm, and threatened to file lawsuits. (Id. at 5.) Again, 15 Thompson ordered Plaintiff to slow down, but Plaintiff again “pulled away from the 16 officers to the point where they had to stop him and place him up against the wall to 17 address the issue.” (Id. at 4-5.) Shortly after Plaintiff and Defendants continued the 18 escort, Plaintiff fell forward to the ground, with Thompson and Heiss also falling behind 19 him. (ECF Nos. 111-10 at 4-5; 111-18 at 04:09:15-04:09:20; 111-19 at 2-5.) Plaintiff 20 briefly lay on his stomach before Thompson and Heiss stood him upright again.5 (Id.) 21 Defendants then finished escorting Plaintiff to his cell. 22 23

5In his Complaint, Plaintiff alleges that Thompson “rushed” Plaintiff to the ground, 24 placed his knee on Plaintiff’s head after falling, and “jerked, pulled, dragged, and attempted to stand [Plaintiff] upright.” (ECF Nos. 1-1 at 4; 5 at 4.) Defendants dispute 25 these allegations in their Motion. (ECF No. 111 at 27 & n.8.) On the day of the Incident, both Holm and Thompson explained that they “unintentionally” fell to the ground with 26 Plaintiff because Plaintiff had “dropped his weight.” (ECF Nos. 111 at 27 & n.8; 111-10 at 4-5.) Although the surveillance video does not clearly capture the entire Incident, it 27 shows that Thompson did not place his knee on Plaintiff’s head, “jerk” Plaintiff, or “drag” Plaintiff. (ECF No. 111-18 at 04:09:15-04:09:20.) 28 1 After the Incident, Riesepow spoke with Plaintiff “for several minutes regarding his 2 actions” and reported that Plaintiff “never complained of injury and he did not request 3 medical attention.” (ECF No. 111-11 at 4.) “I’m good,” Plaintiff later replied, when a nurse 4 asked him about his health the day after the Incident. (ECF No. 111-14 at 2.) 5 Additionally, Plaintiff (1) “denied any injuries sustained during the fall” right after falling 6 and did not request medical care in the days following the Incident, (2) refused to accept 7 continued medication offered by his doctor, (3) showed “[n]o abnormalities” in an x-ray of 8 his cervical spine, and (4) repeatedly reported “no complaints” to CCDC nurses for 9 weeks after the Incident. (ECF Nos. 111-1 at 9; 111-10 at 4; 111-11 at 4; 111-14 at 2; 10 111-15 at 2-3.) 11 B. Plaintiff’s Post-Incident Grievances 12 After the Incident, Plaintiff filed grievances alleging in pertinent part that: (1) Holm 13 had retaliated against Plaintiff when he, among other things, revoked Plaintiff’s kosher 14 meal privileges; and (2) CCDC staff refused to treat Plaintiff’s head injury caused by his 15 fall during the Incident. (ECF No. 111-2 at 2-6.) 16 Generally, CCDC’s inmate grievance process, outlined in the Inmate Handbook 17 and available in the common areas, requires filing a grievance at “each level of the chain 18 of command.” (ECF Nos 111-3 at 2-6; 111-5 at 3; 111-7 at 30.) Specifically, an inmate 19 first must speak to his or her housing unit officer informally and, if “not satisfied” with the 20 officer’s response, then must file a formal grievance with that officer and continue 21 appealing up the institutional chain through a sergeant, lieutenant, and deputy chief. 22 (ECF Nos. 111-5 at 3-5; 111-7 at 30.) Plaintiff testified in his deposition that he knew of 23 CCDC’s inmate grievance procedure and had access to the Inmate Handbook before 24 the Incident. (ECF Nos. 111-1 at 7; 111-5 at 2-3.) 25 For his retaliation claim, Plaintiff submitted two first-level grievances—one 26 addressed to a sergeant on March 19, and the other to a lieutenant on March 21. (ECF 27 No. 111-2 at 2-5.) Plaintiff appealed the response to his March 19 grievance, thus 28 submitting one second-level grievance to a captain. (Id. at 7-8.) And for Plaintiff’s 1 inadequate medical care claim, Plaintiff submitted two first-level grievances at the 2 sergeant level. (Id. at 3, 6.) Plaintiff received responses to both grievances, the second 3 of which explained that a nurse had visited Plaintiff that evening and had informed him 4 that a doctor would see him the following day. (Id. at 6.) Plaintiff later testified that he had 5 found this response unsatisfactory because he had wanted to be taken to the hospital for 6 an MRI and CT scans instead of being seen by a nurse. (ECF No. 111-1 at 11.) This 7 lawsuit followed. 8 C. This Action 9 Upon screening of the Complaint under 28 U.S.C. § 1915A, the Court allowed five 10 of Plaintiff’s claims to proceed. (ECF No. 5 at 23-24.) However, the Court subsequently 11 dismissed two of these claims, leaving only three claims now before the Court: (1) 12 excessive force in violation of the Fourteenth Amendment;6 (2) inadequate medical care 13 in violation of the Due Process Clause of the Fourteenth Amendment; and (3) retaliation 14 in violation of the First Amendment. 16 The Court will first address Defendants’ motion for summary judgment (ECF No. 17 111 (“Motion”)) on Plaintiff’s three remaining claims. To date, Plaintiff has yet to file a 18 response to the Motion, even after the Court granted several extensions of time and 19 repeatedly warned Plaintiff that it would not grant him any further extensions of time. 20 (ECF Nos. 124, 127, 131, 133.) Instead of a response, Plaintiff has filed a motion to 21 strike Defendants’ Motion (ECF No. 122) and a motion to either stay or deny the Motion, 22 including a request for further discovery under Federal Rule of Civil Procedure 56(d) 23 (ECF No. 134). Plaintiff filed additional motions to extend the deadline to file his

24 6Because Plaintiff’s claim of denial of medical care arose while he was a pretrial detainee at CCDC, this Court examines this claim under the Due Process Clause of the 25 Fourteenth Amendment, in line with Ninth Circuit and U.S. Supreme Court precedents. (ECF No. 5 at 10, 15.) See also Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979) (citing 26 Ingraham v. Wright, 430 U.S. 651, 671-72 & n.40 (1977)); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 27 2018).

28 1 response to Defendants’ Motion. (ECF Nos. 135, 141.) Given Plaintiff’s pro se status, 2 and because Plaintiff’s arguments in these first two motions (ECF Nos. 122, 134) 3 address some of Defendants’ arguments and evidence in their Motion, the Court will 4 liberally construe and address both motions as a collective response to Motion.7 See 5 Haines v. Kerner, 404 U.S. 519, 520 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 6 696, 699 (9th Cir. 1990). 7 A. Exhaustion 8 Defendants first move for summary judgment on Plaintiff’s retaliation and denial of 9 medical care claims, arguing that Plaintiff has failed to exhaust administrative remedies 10 as required by the Prison Litigation Reform Act (“PLRA”). (ECF No. 111 at 11-15.) 11 The PLRA requires an inmate to first exhaust administrative remedies before 12 bringing a Section 1983 action in court. 42 U.S.C. § 1997e(a); see also Kingsley v. 13 Hendrickson, 576 U.S. 389, 402 (2015) (noting in dicta that the PLRA, “which is 14 designed to deter the filing of frivolous litigation against prison officials, applies to both 15 pretrial detainees and convicted prisoners”). The PLRA’s exhaustion requirement is not 16 “left to the discretion of the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 17 81, 85 (2006) (citation omitted). The PLRA requires “proper exhaustion,” which 18 “demands compliance with an agency’s deadlines and other critical procedural rules.” Id. 19 at 90-91, 93. 20 “[T]he defendant in a PLRA case must plead and prove nonexhaustion as an 21 affirmative defense.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Jones v. 22 Bock, 549 U.S. 199, 212 (2007)). “[T]he ultimate burden of proof remains with the 23 defendant,” who must first “prove that there was an available administrative remedy, and 24

7Pro se parties are held to less stringent standards than those represented by 25 counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972). As such, federal courts liberally construe pro se filings. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 26 (9th Cir. 1990) (“[P]ro se pleadings are liberally construed, particularly where civil rights claims are involved.”) (citations omitted). Nevertheless, pro se parties, including Plaintiff, 27 nevertheless must follow the same procedural rules as other litigants. See Jacobsen, 790 F.2d at 1364-65. 28 1 that the prisoner did not exhaust that available remedy.” Id. at 1172 (citing Hilao v. Est. 2 of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). Once the defendant has carried its 3 initial burden, the burden then shifts to the incarcerated plaintiff, who must “come 4 forward with evidence showing that there is something in his particular case that made 5 the existing and generally available administrative remedies effectively unavailable to 6 him.” Id. As further explained further below, Defendants have satisfied their ultimate 7 burden of proof. They show that, despite administrative remedies being available, 8 Plaintiff failed to exhaust them in relation to the incidents underlying his retaliation and 9 denial of medical care claims. 10 Generally, the inmate grievance process requires filing a grievance at “each level 11 of [CCDC’s] chain of command.” (ECF No. 111-7 at 30.) Specifically, an inmate first must 12 speak to his housing unit officer informally and, if “not satisfied” with the officer’s 13 response, must then file a formal grievance with that officer and continue appealing up 14 the institutional chain through a sergeant, lieutenant, and finally deputy chief. (ECF Nos. 15 111-5 at 3-5; 111-7 at 30.) For his retaliation claim, Plaintiff appears to have submitted 16 two first-level grievances about Holm’s alleged retaliatory acts.8 (ECF No. 111-2 at 2-5.) 17 To be sure, Plaintiff appealed the response to one of these first-level grievances and 18 then filed a second-level grievance to a captain. (Id. at 7-8.) But there is no evidence 19 showing Plaintiff appealed his grievance responses up to the deputy chief level, as 20 required by CCDC’s inmate grievance procedure. Moreover, Plaintiff testified that he had 21 been familiar with the inmate grievance procedure and had access to the Inmate 22 Handbook before and around March 2018—the time of the incident at issue here. (ECF 23 Nos. 111-1 at 7; 111-5 at 2-3.) Plaintiff presents no evidence showing he completed the

24 8Defendants assert that Plaintiff “did not take the first formal step of filing a written grievance” about the incident underlying his First Amendment retaliation claim. (ECF No. 25 111 at 14.) In two first-level grievances, Plaintiff alleges that Holm “retaliated” against Plaintiff by accusing him of hiding food and lying about missing “protein,” later revoking 26 Plaintiff’s kosher meal privileges after the events occurring on March 15 and 16, 2018. (ECF No. 111-2 at 2-5.) A CCDC lieutenant responded to Plaintiff’s first formal 27 grievance, while Holm, a sergeant, responded to the second grievance. (Id. at 2, 5.)

28 1 grievance process by appealing either response up to the deputy chief. Because Plaintiff 2 did not submit a grievance through the chain of command—despite knowing of and 3 having access to the inmate grievance procedure while detained at CCDC—the Court 4 grants summary judgment for Defendants on the retaliation claim. 5 For Plaintiff’s denial of medical care claim, Defendants have also established 6 nonexhaustion as an affirmative defense, thus warranting summary judgment. Plaintiff 7 alleges that Defendants repeatedly refused to provide him medical assistance and 8 discouraged others from giving medical assistance after causing Plaintiff’s head injury 9 during the March 16 Incident. (ECF No. 5 at 10-11.) Plaintiff submitted two first-level 10 grievances—one submitted on March 19, and the other on March 22—at the sergeant 11 level, each lamenting CCDC staff’s refusal to treat his head injury. (ECF No. 111-2 at 3, 12 6.) Plaintiff received responses to both grievances. (Id.) The second response, dated 13 March 22, explained to Plaintiff that a nurse had visited him that evening and informed 14 him that a doctor would see him the following day. (Id. at 6.) Plaintiff later testified that he 15 had found the March 22 response unsatisfactory because he had wanted to be taken to 16 the hospital instead of a nurse’s visit. (ECF No. 111-1 at 11.) Though Plaintiff had found 17 at least one response unsatisfactory, he offers no evidence showing he appealed either 18 response. Because Plaintiff did not submit any appeals involving his medical emergency- 19 related grievances, the Court finds that Plaintiff failed to exhaust his Fourteenth 20 Amendment denial of medical care claim. Accordingly, the Court also grants Defendants’ 21 Motion on the Fourteenth Amendment denial of medical care claim. 22 B. Merits of the Fourteenth Amendment Excessive Force Claim 23 Plaintiff alleges that Defendants violated his Fourteenth Amendment right against 24 excessive force when, upon escorting him from the dining hall to disciplinary housing on 25 March 16, 2018, they (1) pushed Plaintiff against a wall while holding his arm and 26 bending his restrained wrists, (2) slammed Plaintiff’s forehead into the wall, and (3) 27 “rushed” Plaintiff to the ground and then performed a knee drop on the side of his head. 28 1 (ECF Nos. 1-1 at 4; 5 at 4.) Shortly after falling to the ground, Defendant Thompson 2 allegedly “jerked, pulled, dragged, and attempted to stand [Plaintiff] upright.” (Id.) 3 Defendants do not dispute that Thompson placed Plaintiff against the wall while 4 escorting him to disciplinary housing. (ECF No. 111 at 24.) Nor do they dispute that 5 Plaintiff and Thompson both fell to the ground shortly thereafter. (Id. at 27.) Instead, they 6 argue that Plaintiff’s excessive force claim fails because Defendants acted in an 7 objectively reasonable manner and with a legitimate correctional purpose under the 8 circumstances. (Id. at 24-28.) Moreover, they argue, there is no evidence showing that 9 Defendants slammed Plaintiff’s head against the wall. (Id. at 28-29.) The Court agrees. 10 As further explained below, Defendants have established that no genuine issue of 11 material fact exists as to whether Defendants’ actions were (a) rationally related to the 12 legitimate governmental purpose of maintaining security and order and (b) objectively 13 reasonable in relation to that purpose. In turn, Plaintiff does not present any specific 14 facts showing that a dispute exists to preclude summary judgment. See Bhan v. NME 15 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Orr v. Bank of Am., 285 F.3d 764, 783 16 (9th Cir. 2002). Accordingly, the Court grants the Motion on the excessive force claim. 17 1. Legal Framework 18 The Due Process Clause of the Fourteenth Amendment “protects a pretrial 19 detainee from the use of excessive force that amounts to punishment,” as opposed to 20 the Eighth Amendment’s protection against deliberate use of force after conviction. 21 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 22 535-39 (1979)); see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) 23 (“[T]he due process rights of a [detainee] are at least as great as the Eighth Amendment 24 protections available to a convicted prisoner.”) To determine whether the Due Process 25 Clause is violated, “a pretrial detainee can prevail by providing only objective evidence 26 that the challenged governmental action is not rationally related to a legitimate 27 governmental objective or that it is excessive in relation to that purpose.” Kingsley, 576 28 U.S. at 398 (citations omitted); see also Bell, 441 U.S. at 560-61 (finding that a jail’s 1 security restrictions and practices did not constitute “punishment” in violation of the Due 2 Process Clause because, in pertinent part, they were “reasonable responses” to the 3 “legitimate nonpunitive governmental purpose” of maintaining security and order). 4 So even if a defendant’s use of force is rationally related to a legitimate 5 governmental purpose, a pretrial detainee may still prevail if the force used is, 6 constitutionally speaking, objectively unreasonable. See Kingsley, 576 U.S. at 397-98. 7 Although objective reasonableness is highly fact-and context-specific and cannot be 8 applied “mechanically,” the Court must make this determination by balancing several 9 factors “from the perspective of a reasonable officer on the scene, including what the 10 officer knew at the time, not with the 20/20 vision of hindsight.” Id. at 397 (citing Graham, 11 490 U.S. at 396). These reasonableness factors include: (1) “the relationship between 12 the need for the use of force and the amount of force used”; (2) “the extent of the 13 plaintiff’s injury”; (3) “any effort made by the officer to temper or to limit the amount of 14 force”; (4) “the severity of the security problem at issue”; (5) “the threat reasonably 15 perceived by the officer”; and (6) “whether the plaintiff was actively resisting.” Id. The 16 Court also “must take account of the legitimate interests in managing a jail, 17 acknowledging as part of the objective reasonableness analysis that deference to 18 policies and practices needed to maintain order and institutional security is appropriate.” 19 Id. at 399-400. 20 2. Analysis 21 a. Legitimate Governmental Objective 22 Defendants have first established that, under the circumstances, Defendants’ 23 actions during the March 16 Incident were “rationally related to a legitimate 24 governmental objective,” namely, that of maintaining order and institutional security at 25 CCDC. See Kingsley, 576 U.S. at 398 (citing Bell, 441 U.S. at 561)). Thompson placed 26 Plaintiff against the wall and restrained him on the ground during the escort so he could 27 regain physical control of Plaintiff, a tall man, after Plaintiff had (1) spoken over and 28 cursed at Holm, (2) defied officers’ orders, (3) encouraged other inmates to join in his 1 defiance, (4) quickened and tried setting the walking pace, and (5) pulled away from 2 Thompson and Heiss during the escort. (ECF Nos. 111-10 at 4-5; 111-20 at 3; 111-22 at 3 2-3.) Also reinforcing Thompson’s need to regain physical control over Plaintiff was 4 Plaintiff’s in-custody history of physical violence against inmates and verbal threats 5 against staff. (ECF Nos. 111-1 at 14; 111-10 at 3-5; 111-11 at 4; 111-12 at 12-13, 15- 6 16.) Further, Plaintiff’s 2016 booking records state that his pretrial detention was in 7 relation to a violent felony offense, and that he had had “2 to 3” total violent felony 8 charges in the previous 15 years. (ECF No. 111-4 at 15-16.) The evidence shows that, in 9 a good-faith effort to maintain security and order, Defendants sought to regain physical 10 control of an inmate actively defying Defendants’ orders and had a known history of 11 engaging in physical violence and verbal threats. And because Plaintiff offers no 12 objective evidence showing that Defendants’ actions were not rationally related to a 13 legitimate governmental objective at CCDC, see Kingsley, 576 U.S. at 398, the Court 14 finds that Defendants’ actions do not violate the Fourteenth Amendment Due Process 15 Clause on this basis. 16 b. Objective Reasonableness 17 Nor were Defendants’ actions excessive from the perspective of a reasonable 18 officer on the scene, who often must make split-second decisions in tense situations. 19 See Kingsley, 576 U.S. at 397, 399-400; Graham, 490 U.S. at 396. The Kingsley factors, 20 on balance, weigh against a finding of excessive force used against Plaintiff. 21 The first and sixth Kingsley factors—the relationship between the need for the use 22 of force and the amount of force used and whether Plaintiff was actively resisting, 23 respectively—both weigh against a finding of excessive force used. During the escort, 24 Plaintiff was actively defying Thompson’s orders, speaking over and cursing at Holm, 25 encouraging other inmates to join in defiance, quickening his walking pace, and pulling 26 away from Thompson and Heiss. (ECF Nos. 111-10 at 4-5; 111-20 at 3; 111-22 at 2-3.) 27 And, contrary to Plaintiff’s allegations, the surveillance video of the escort does not show 28 1 Thompson dropping his knee onto Plaintiff’s neck after they both fall to the floor. (ECF 2 Nos. 1-1 at 4; 5 at 4; 111-1 at 8, 111-11 at 4; 111-18 at 04:09:15-04:09:20; 111-19 at 2- 3 5.) Even assuming that Thompson forced Plaintiff’s head against the wall, Plaintiff’s open 4 defiance of correctional orders would lead a reasonable officer in Thompson’s position to 5 believe that at least some use of force was objectively reasonable. Thompson’s use of 6 force, while excessive in Plaintiff’s view, reasonably sought to gain Plaintiff’s compliance 7 and regain physical control over him during a tense disciplinary housing escort. 8 The second Kingsley factor—the extent of Plaintiff’s alleged injury—also weighs 9 against Plaintiff. Though Plaintiff had refused to sign a medical refusal report after the 10 Incident, the record shows that Plaintiff also: (1) “denied any injuries sustained during the 11 fall” and stated “I’m good” regarding his health the day after the Incident; (2) did not 12 request medical attention in the three days between the Incident and the filing of his 13 grievance; (3) refused to accept continued medication offered by his doctor; (4) showed 14 “[n]o abnormalities” in an x-ray of his cervical spine; and (6) repeatedly reported “no 15 complaints” to CCDC nurses for weeks following the Incident. (ECF Nos. 111-1 at 9; 16 111-10 at 4; 111-11 at 4; 111-14 at 2; 111-15 at 2-3.) 17 The third Kingsley factor—an officer’s efforts to temper or limit the amount of force 18 used—also weighs against Plaintiff. Before the Incident, Plaintiff had defied officers’ 19 orders in the chow hall at least twice and had encouraged fellow inmates to join in his 20 defiance. (ECF No. 111-10 at 3-5.) Thompson first gave Plaintiff verbal orders to slow his 21 pace during the escort, which Plaintiff disobeyed by picking up his pace and pulling away 22 from Thompson and Heiss. (ECF Nos. 111-10 at 4-5; 111-20 at 3; 111-22 at 2-3.) Even 23 assuming that Thompson intentionally caused Plaintiff to fall down thereafter, 24 surveillance footage shows that Thompson did not apply a “knee drop” on Plaintiff’s

25 9In the CCDC surveillance video, a structural column and a correctional officer’s body block most of the view of Plaintiff and Thompson as Thompson places Plaintiff 26 against the wall. (ECF No. 111-18 at 04:09:06-04:09:15.) So it is unclear whether Thompson “slammed” Plaintiff’s forehead against the wall at this moment as Plaintiff 27 alleges. (ECF Nos. 5 at 4; 111-11 at 4 (noting that “[v]ideo of this specific moment is dark and unable to make out”).) 28 1 head. (ECF No. 111-18 at 04:09:15-04:09:20.) From the perspective of a reasonable 2 officer in Thompson’s position, Thompson’s verbal orders and placement of Plaintiff 3 against the wall after Plaintiff’s defiance of repeated orders are evidence of Thompson’s 4 attempts to temper his use of force. 5 The fourth Kingsley factor—the severity of the security problem at issue—weighs 6 quite heavily against Plaintiff. As previously noted, the reason for Plaintiff’s disciplinary 7 housing escort in the first place was Plaintiff’s defiance of CCDC officers’ orders in the 8 chow hall. (ECF No. 111-10 at 4-5.) And Plaintiff’s open defiance of Defendants’ orders 9 during the Incident, coupled with an extensive in-custody history of physical violence and 10 verbal threats, further justified Defendants’ fear that Plaintiff would harm Defendants and 11 other CCDC staff. (ECF Nos. 111-1 at 14; 111-10 at 3-5; 111-11 at 4; 111-12 at 12-13, 12 15-16.) As Thompson reported the day of the Incident, Plaintiff was “threatening the 13 supervisors and officers who were transporting him” and “made it clear that when his 14 hand restraints were removed, he was going to attack Sgt. Holm.” (ECF No. 111-10 at 15 4.) According to Holm’s incident report, Plaintiff “uses his size to gain backing from 16 inmates in the housing units, and he attempts to intimidate staff as well.” (Id. at 5.) Holm 17 also stated “believ[ing] it is only a matter of time before [Plaintiff] attacks and seriously 18 injures an officer.” (Id.) When viewing the facts in the light most favorable to Plaintiff, the 19 Court finds that Defendants reasonably perceived Plaintiffs’ actions as a security 20 threat—weighing the fifth Kingsley factor against Plaintiff as well. 21 On balance, and in “deference to policies and practices needed to maintain order 22 and institutional security,” Kingsley, 576 U.S. at 399-400, the Court finds that 23 Defendants’ use of force was objectively reasonable. Thus, the Court concludes that 24 Defendants are entitled to summary judgment on the Fourteenth Amendment excessive 25 force claim, and it declines to reach the merits of Defendants’ qualified immunity 26 argument. And overall, the Court grants Defendants’ Motion on all three of Plaintiff’s 27 remaining claims. 28 /// 1 D. Other Pending Motions (ECF Nos. 122, 134, 135, 141) 2 1. Motion to Strike (ECF No. 122) 3 Plaintiff seeks to strike Defendants’ Motion “in its entirety.” (ECF No. 122 at 2.) 4 Given Plaintiff’s pro se status, the Court liberally construes this motion as a response to 5 Defendants’ Motion because it challenges the admissibility of one piece of evidence.10 6 Even if the Court had not so construed, the Court would nevertheless deny 7 Plaintiff’s motion to strike because Plaintiff has erroneously invoked Federal Rule of Civil 8 Procedure 12(f) to strike Defendants’ Motion. “Under Rule 12(f) a court may strike from a 9 pleading any redundant, immaterial, impertinent, or scandalous matter. However, 10 motions to strike apply only to pleadings, and courts are generally unwilling to construe 11 the rule broadly and refuse to strike motions, briefs, objections, affidavits, or exhibits 12 attached thereto.” Herb Reed Enter., LLC v. Fla. Ent. Mgmt., Inc., Case No. 2:12-cv- 13 00560-MMD-GWF, 2014 WL 1305144, at *6 (D. Nev. Mar. 31, 2014) (citations omitted). 14 The Court thus refuses to strike Defendants’ Motion under Rule 12(f), and denies 15 Plaintiff’s motion to strike. 16 2. Motion to Stay (ECF No. 134) 17 Plaintiff also moves to either stay or deny Defendants’ Motion and, as the Court 18 construes it, seeks leave to conduct further discovery under Rule 56(d). (See generally 19 20

10In his motion to strike, Plaintiff seeks to exclude Defendants’ copy of CCDC’s 21 Standard Operating Procedure (“SOP”) about the inmate grievance procedure. (ECF No. 122 at 3-4.) Plaintiff appears to argue that the SOP is inadmissible as an 22 unauthenticated document and as hearsay evidence. (Id. at 3.) Plaintiff also argues that Defendants were late in disclosing the SOP to him during discovery. In response, 23 Defendants correctly point out that, contrary to Plaintiff’s assertions, the Court can consider this evidence on summary judgment. (ECF No. 128 at 6-7.) Also, Defendants 24 show that, while the SOP was initially confidential while Plaintiff was incarcerated, they repeatedly tried to work with Plaintiff to grant him access. Specifically, Defendants asked 25 Plaintiff to sign a Stipulated Protective Order that would allow him to access the SOP on the inmate grievance process. (ECF Nos. 128 at 9-10; 128-1; 128-2; 128-3; 128-7 at 5.) 26 Plaintiff ultimately refused to sign the Stipulated Protective Order. (ECF Nos. 128 at 10; 128-4 at 4.) After Plaintiff’s release from custody in November 2022, Defendants 27 provided him the SOP, ultimately attached as Exhibit C to Defendants’ Motion. (ECF Nos. 111-3; 128 at 10; 128-5 at 29-33.) 28 1 ECF No. 134.) The Court denies this motion because Defendants are entitled to 2 summary judgment.11 3 Plaintiff is not entitled to Rule 56(d) relief. Because Plaintiff (1) had realistic 4 opportunities to pursue discovery relating to the theory of his case, (2) received several 5 pertinent documents from Defendants, (3) repeatedly ignored his discovery obligations 6 over the five-times-extended discovery period, and (4) waited until over three months 7 after the dispositive motions deadline to seek Rule 56(d) relief, Plaintiff fails to show he 8 has diligently pursued previous discovery opportunities, and that allowing additional 9 discovery would have precluded summary judgment. (See, e.g.. ECF Nos. 36, 40, 48, 10 72, 81 (granting extensions to discovery period); 113 (extending dispositive motions 11 deadline; instructing Plaintiff to respond to interrogatories).) See also LR 26-3; Clark v. 12 Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1179 (9th Cir. 2006) (suggesting 13 it would not be diligent to “move[ ] the court to compel discovery only after the deadlines 14 for discovery or submission of dispositive motions had passed”); Pfingston v. Ronan 15 Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002); Qualls v. Blue Cross of Cal., Inc., 22 F.3d 16 839, 844 (9th Cir. 1994); Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 17 (9th Cir. 1986); Garcia v. Serv. Emps. Int’l Union, 332 F.R.D. 351, 354 (D. Nev. 2019) 18 (collecting cases). 19 3. Motions to Extend Time (ECF Nos. 135, 141) 20 Because Defendants are entitled to summary judgment, the Court also denies as 21 moot Plaintiff’s motions to extend time and to stay (ECF Nos. 135, 141). 22 /// 23 /// 24 /// 25 /// 26

11The Court advises Plaintiff that a stay is “[a]n order to suspend all or part of a 27 judicial proceeding or a judgment resulting from that proceeding,” such as discovery. Black’s Law Dict. (11th ed. 2019). 28 V. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several 3 || cases not discussed above. The Court has reviewed these arguments and cases and 4 || determines that they do not warrant discussion as they do not affect the outcome of the 5 || motions before the Court. 6 It is therefore ordered that Defendants’ motion for summary judgment (ECF No. 7 || 111) is granted. 8 It is further ordered that Plaintiff's pending motions (ECF Nos. 122, 134, 135, 141) 9 || are denied. 10 It is further ordered that the Clerk of Court enter judgment accordingly and close 11 || this case. 12 DATED THIS 27" Day of June 2023.

14 MIRANDA M. DU 15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28