Joseph Vincent Kauth v. Tulare County Sheriff Department, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH VINCENT KAUTH, Case No.: 1:23-cv-01733-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION FOR 13 v. SUMMARY JUDGMENT

14 TULARE COUNTY SHERIFF (Doc. 35) DEPARTMENT, et al., 15 14-DAY OBJECTION DEADLINE Defendants. 16 Clerk of the Court to Assign District Judge

18 Plaintiff Joseph Vincent Kauth is appearing pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. section 1983. This action proceeds on Plaintiff’s constitutional 20 claim against Defendant Kenneth Jones, II. 21 I. RELEVANT BACKGROUND 22 Plaintiff initiated this action by filing a complaint on December 18, 2023. (Doc. 1.) 23 Following screening by the previously assigned magistrate judge and service of process, 24 Defendant Kenneth Jones, II filed an answer to the complaint on December 5, 2024. (Doc. 19.) 25 The Court issued a Discovery and Scheduling Order on December 16, 2024. (Doc. 20.) 26 On April 8, 2025, Defendant file an Ex Parte Motion to Continue Discovery Deadlines 27 (Doc. 29) and an amended motion to compel discovery responses (Doc. 31). 1 32) and Motion to Compel with Supporting Memorandum (Doc. 33). 2 On June 30, 2025, Defendant filed a merits-based motion for summary judgment. (Doc. 3 35.) Defendant’s motion included a Rand1 warning, addressing the requirements for opposing a 4 motion for summary judgment. (Id. at 1-3.) Plaintiff did not file an opposition. 5 On July 31, 2025, the previously assigned magistrate judge issued an Order Directing 6 Defendant to Inform Court of: (1) the Status of Plaintiff’s Related State Court Matter, and (2) 7 Whether Dispositive Rulings on Defendant’s Pending Ex Parte Application and Motion to 8 Compel Are Still Warranted. (Doc. 37.) 9 In an August 4, 2025, status report, Defendant advised that the related state court criminal 10 matter involving Plaintiff was set for sentencing on August 22, 2025, and asked the Court “to 11 defer a ruling on the motion to extend discovery and to compel discovery responses until after the 12 Court renders a decision on the summary judgment motion.” (Doc. 38.) 13 On October 6, 2025, this matter was reassigned to the undersigned. (Doc. 39.) The Court 14 now considers Defendants’ unopposed summary judgment motion. 15 II. APPLICABLE LEGAL STANDARDS 16 Motions for Summary Judgment 17 Summary judgment is appropriate when it is demonstrated that there “is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 20 “citing to particular parts of materials in the record, including depositions, documents, 21 electronically stored information, affidavits or declarations, stipulations (including those made for 22 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 23 Civ. P. 56(c)(1)(A). 24 Summary judgment should be entered, after adequate time for discovery and upon motion, 25 against a party who fails to make a showing sufficient to establish the existence of an element 26 essential to that party's case, and on which that party will bear the burden of proof at trial. See 27

1 1 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 2 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. 3 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to 4 establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 5 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 6 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 7 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 8 and/or admissible discovery material, in support of its contention that the dispute exists or shows 9 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 10 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 11 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 12 governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 13 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Further, the opposing 14 party must also demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 16 F.2d 1433, 1436 (9th Cir. 1987). 17 In the endeavor to establish the existence of a factual dispute, the opposing party need not 18 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 19 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 20 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 21 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 22 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 23 amendments). 24 In resolving the summary judgment motion, the evidence of the opposing party is to be 25 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 26 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 27 U.S. at 587. Nevertheless, “inferences are not drawn out of thin air,” and it is the opposing party’s 1 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th 2 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 3 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 4 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 5 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 6 A court may grant an unopposed or inadequately opposed motion for summary judgment 7 if the supporting papers are themselves sufficient to warrant granting the motion and do not on 8 their face reveal a genuine issue of material fact. See Henry v. Gill Industries, Inc., 983 F.2d 943, 9 950 (9th Cir. 1993). 10 Eighth Amendment: Excessive Force 11 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 12 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 13 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 14 “[W]henever prison officials stand accused of using excessive physical force in violation of the 15 [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith 16 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 17 503 U.S. at 6-7 (brackets added) (referencing Whitley v. Albers, 475 U.S. 312 (1986)). Under the 18 Eighth Amendment, a court looks for malicious and sadistic force, not merely objectively 19 unreasonable force. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). “[T]he extent of injury 20 suffered by an inmate is one factor that may suggest whether the use of force could plausibly have 21 been thought necessary in a particular situation.” Hudson, 503 U.S. at 7 (internal quotation marks 22 omitted) (citing Whitley, 475 U.S. at 321). 23 When determining whether the use of force was wanton and unnecessary, evaluating the 24 need for application of force, the relationship between that need and the amount of force used, the 25 threat reasonably perceived by the responsible officials, and any efforts made to temper the 26 severity of a forceful response may also be proper to evaluate. See id. (citation omitted). The 27 absence of serious injury is therefore relevant to the Eighth Amendment inquiry but does not end 1 “[N]ot every malevolent touch by a prison guard gives rise to a federal action.” Wilkins v. 2 Gaddy, 559 U.S. 34, 37 (2010) (internal quotation marks omitted) (citing Hudson, 503 U.S. at 9). 3 “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes 4 from constitutional recognition de minimis uses of physical force, provided that the use of force is 5 not of a sort repugnant to the conscience of mankind.” Id. at 37-38 (citation omitted). “An inmate 6 who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state 7 a valid excessive force claim.” Id. at 38 (citations & internal quotation marks omitted). While de 8 minimis uses of physical force generally do not implicate the Eighth Amendment, significant 9 injury need not be evident in the context of an excessive force claim, because “[w]hen prison 10 officials maliciously and sadistically use force to cause harm, contemporary standards of decency 11 always are violated.” Hudson, 503 U.S. at 9 (citing Whitley, 475 U.S. at 327). “Injury and 12 force … are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 13 U.S. at 38. 14 III. PLAINTIFF’S ALLEGATIONS 15 Plaintiff named “Jones II Kennet” (later identified as Kenneth Jones, II) and the Tulare 16 County Sheriff’s Office as defendants in this action. (Doc. 1 at 2.) Plaintiff contends that on May 17 2, 2023, Defendant Jones kicked him three times from a standing position while Plaintiff lay 18 prone on his stomach, after he had been handcuffed by other officers. (Id. at 3.) Plaintiff contends 19 Defendant Jones’s actions were intentional and “very malicious.” (Id.) He maintains he suffered 20 physically and mentally and will do so for the rest of his life. (Id.) Plaintiff seeks $10,000,000.00 21 in damages. (Id.)2 22 IV. DEFENDANT’S STATEMENT OF UNDISPUTED FACTS 23 Defendant submitted the following statement of undisputed facts: 24 1. Defendant Jones was a Sergeant with the Tulare County Sheriff’s Department. 25 2. On May 2, 2023, Sgt. Jones was assigned to join multi-law enforcement agency efforts 26 to locate and arrest Plaintiff Kauth who was considered to be armed with a firearm and 27 2 The Tulare County Sheriff’s Department is not a defendant in this action. (See Doc. 10 [Screening Order issued 1 dangerous. 2 3. Defendant Sgt. Jones was told that Kauth was on the Tulare County’s top ten most 3 wanted fugitives. 4 4. Sgt. Jones knew that Kauth had prior felony convictions. 5 5. Sgt. Jones knew Kauth had a prior history of arrests that included weapons and drug- 6 related charges. 7 6. Sgt. Jones knew that the Tule River Tribal Police had asked for assistance in 8 apprehending Kauth. 9 7. Sgt. Jones knew that Tribal Police had reported they had tried to apprehend Kauth 10 earlier in the day, that Kauth had evaded arrest, was armed, and had fired a handgun at 11 Tribal Police who were trying to arrest him. 12 8. A known associate of Kauth’s reported that Kauth had said that he would not be 13 arrested that day, which based on [Jones’s] experience and training could have meant 14 that he intended to use force to avoid arrest or may have been intending suicide by 15 cop. 16 9. When attempts to arrest Kauth were made by Sgt. Jones, Kauth led officers on a chase 17 through the orchards of Porterville, ultimately crashing into a fence, where he was 18 apprehended and hid on foot. 19 10. Prior to locating and arresting Kauth at the property where he was hiding, multiple 20 announcements were made directing him to come out with his hands up, and that they 21 had a police dog that would be released. 22 11. Kauth failed to comply with orders. 23 12. Kauth was located hiding in a truck, in an unsecured area. 24 13. Kauth was bitten by the Police dog and then pulled from the truck by the police dog 25 because Kauth refused commands to exit the vehicle. 26 14. Kauth failed to cooperate with officers’ attempts to handcuff Kauth. 27 15. Plaintiff was actively resisting arrest by kicking his feet and refusing to give up his 1 16. Kauth was exhibiting extraordinary strength by resisting multiple officers’ attempts to 2 control Kauth’s feet and arms and secure him in handcuffs. 3 17. Sgt. Jones believed, based on training and experience, that Kauth was under the 4 influence of an unlawful mind altering stimulant. 5 18. Based on his training and experience, and the circumstances presented, this was a 6 highly volatile, dangerous police operation. 7 19. Believing that officer safety was at risk, based on the circumstances presented, and 8 based on his training and experience, Jones used three quick kicks to distract Kauth so 9 that Officers could secure Kauth in handcuffs. 10 20. Kauth was arrested without further incident and checked for injury by medical staff. 11 21. County’s expert has opined that the situation presented “is about as dangerous as it 12 gets” and that an armed prone suspect poses an immediate extreme risk to law 13 enforcement. 14 22. County’s expert has opined that nothing he read in the arrest report or saw on the 15 video caused him to opine that force was unreasonable, excessive, or out of policy. 16 23. County’s expert has opined that Sgt. Jones’ conduct was within police policy and 17 consistent with POST training. 18 (Doc. 35-2 [hereafter UDF].) 3 19 V. DISCUSSION 20 Defendant’s Motion for Summary Judgment 21 Briefly stated, Defendant asserts he is entitled to summary judgment because the evidence 22 3 Because Plaintiff did not file an opposition, he neither admitted nor denied the facts set forth by Defendant as 23 undisputed nor filed a separate statement of disputed facts. Local Rule 260(b). A verified complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is 24 based on an inmate's personal knowledge of admissible evidence, and not merely on the inmate's belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 25 1985); Fed. R. Civ. P. 56(e). Here, because Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to have admitted those facts not disputed by his complaint or other submissions. See, e.g., Beard v. Banks, 548 U.S. 26 521, 527 (2006) (“by failing specifically to challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant's] statement”); Brito 27 v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020) (deeming defendant's undisputed facts as admitted after plaintiff failed to comply with Local Rule 260(b)); see also Jones v. Blanas, 393 1 establishes the kicks inflicted only transient pain without significant risk of injury amounting to 2 low level force, the use of force was justified by the governmental interests at stake and the 3 severity of the crimes, Plaintiff posed an immediate threat of serious bodily injury or death to 4 officers and the public, Plaintiff resisted arrest, and even assuming “a triable issue as to whether 5 the use of force here was objectively reasonable, Defendant would still be entitled to qualified 6 immunity.” (Doc. 35-1.) 7 The Court has reviewed all the evidence presented, including supporting declarations and 8 all exhibits. (Doc. 35-3, 35-4 & 35-5.) As noted above, Plaintiff did not oppose Defendant’s 9 motion. 10 Analysis 11 A. The Need for Application of Force 12 Defendant Jones has presented evidence that the application of force was necessary under 13 the circumstances present here. Jones was aware that Plaintiff was believed to be armed and 14 dangerous on the date in question, was a Tulare County top ten most wanted fugitive, and had 15 prior felony convictions and prior arrest history that included weapon and drug charges. UDF 2-5. 16 Further, Jones has presented evidence indicating he was aware of the Tule River Tribal Police 17 asking for assistance in apprehending Plaintiff after their earlier attempt to arrest Plaintiff resulted 18 in Plaintiff firing a handgun at tribal officers before ultimately evading arrest by that agency. 19 UDF 6-7. Moreover, Jones has presented evidence that a known associate of Plaintiff’s reported 20 that Plaintiff stated that “he would not be arrested that day,” which is an indicator of an intention 21 to use force to avoid arrest or to commit suicide by cop. UDF 8. Thus, Defendant Jones has met 22 his initial burden by demonstrating there is no genuine dispute as to any material fact concerning 23 a required element of Plaintiff’s excessive force claim. Fed. R. Civ. P. 56(c)(1)(A). 24 B. The Relationship Between the Need and Amount of Force Used 25 Defendant Jones has also presented evidence concerning the relationship between the need 26 for the use of force and the amount of force used. Specifically, Jones presented evidence that 27 Plaintiff led Tulare County officials on a chase through Porterville orchards before crashing into a 1 nearby property, despite multiple announcements directing Plaintiff to come out with his hands 2 up and that a police dog was present, Plaintiff failed to comply. UDF 10-12. When Plaintiff 3 refused to comply, the police dog was deployed, and Plaintiff was pulled from the truck by the 4 dog and was bitten during that encounter. UDF 13. 5 Jones has also presented evidence that Plaintiff did not cooperate with law enforcement 6 officials’ attempts to handcuff him; instead, Plaintiff actively resisted by kicking his feet and 7 refusing to “give up his hands to be cuffed.” UDF 14-15. Further, Jones has presented evidence 8 that Plaintiff exhibited extraordinary strength during that resistance, an indication in Jones’s 9 experience that Plaintiff was under the influence of a mind-altering stimulant, and one that 10 presents a highly volatile and dangerous situation. UDF 16-18. Jones has also presented evidence 11 that based on the circumstances and his training and experience, he “used three quick kicks to 12 distract” Plaintiff, allowing for other officers to secure Plaintiff in handcuffs without further 13 incident. UDF 19-20. Finally, Jones has presented expert testimony indicating the situation on 14 May 2, 2023, was dangerous, posed an extreme risk to law enforcement, and that Jones’s actions 15 were consistent with training and policy. UDF 21-23.4 Therefore, Defendant Jones has met his 16 initial burden by demonstrating there is no genuine dispute as to any material fact concerning a 17 required element of Plaintiff’s excessive force claim. Fed. R. Civ. P. 56(c)(1)(A). 18 C. The Threat Reasonably Perceived by Defendant Jones 19 Next, Defendant Jones has presented evidence concerning the reasonableness of the threat 20 perceived. As noted above, Jones was aware that Plaintiff was likely armed and dangerous on 21 May 2, 2023, was a top ten fugitive, had prior convictions and an arrest history, and that Plaintiff 22 had successfully eluded capture by the Tule River Tribal Police after firing a weapon during his 23 encounter with them on the same date. UDF 2-7. Jones was also aware that Plaintiff had advised a 24 known associate that he did not intend to be arrested that day. UDF 8. Additionally, Jones has 25 4 The Court disregards the expert’s statement that nothing he reviewed in the record led him to opine that 26 Defendant’s use of force was unreasonable or excessive (UDF 22). Cf. Stevenson v. Holland, 504 F. Supp. 3d 1107, 1119 (E.D. Cal. 2020) (permitting use of force expert to offer “opinions on whether certain actions were in 27 accordance with relevant training and best practices”) with Morgan v. City of Los Angeles, No. 2:17-cv-06693-VAP- JEMx, 2020 WL 6048831, at *3-4 (C.D. Cal. June 23, 2020) (police practices expert could not offer opinion as to 1 presented expert testimony indicating the situation on May 2, 2023, was dangerous and posed an 2 extreme risk to law enforcement. UDF 21. In sum, Defendant Jones has met his initial burden of 3 demonstrating there is no genuine dispute as to any material fact concerning a required element of 4 Plaintiff’s excessive force claim. Fed. R. Civ. P. 56(c)(1)(A). 5 D. Efforts to Temper the Severity of the Forceful Response 6 Defendant Jones has presented evidence concerning efforts made to temper the severity of 7 the forceful response used on May 2, 2023. As noted earlier, once Plaintiff was located hiding in 8 a truck, he was given multiple opportunities to exit the vehicle with his hands up to avoid 9 intervention by a police dog. UDF 10-13. And even after the police dog intervened and Plaintiff 10 was pulled from the truck, Plaintiff refused to be handcuffed and actively resisted officers’ efforts 11 by kicking his feet and refusing to provide his hands. UDF 14-15. When Jones observed Plaintiff 12 exhibit extraordinary strength during that encounter and believed Plaintiff was under the 13 influence of a mind-altering stimulant, he delivered three quick kicks to Plaintiff to distract him 14 so other officers could secure Plaintiff in handcuffs. UDF 16-19. Thereafter, Plaintiff was taken 15 into custody without further incident. UDF 20. Additionally, Jones has presented expert testimony 16 indicating the force used was consistent with training and policy. UDF 22-23. The Court finds 17 that Defendant Jones has met his initial burden of demonstrating there is no genuine dispute as to 18 any material fact concerning a required element of Plaintiff’s excessive force claim. Fed. R. Civ. 19 P. 56(c)(1)(A). 20 E. The Absence of Serious Injury 21 Finally, Defendant Jones has presented evidence that Plaintiff did not suffer serious 22 injury. Although Plaintiff was bitten by the police dog as he was removed from the truck, after 23 Plaintiff was in custody, he was checked and treated by medical staff. UDF 13, 20; see also UDF 24 22-23. Again, Defendant Jones has met his initial burden of demonstrating there is no genuine 25 dispute as to any material fact concerning a required element of Plaintiff’s excessive force claim. 26 Fed. R. Civ. P. 56(c)(1)(A). 27 F. The Burden Shifts to Plaintiff 1 Plaintiff to establish that a genuine issue as to any material fact exists. Matsushita, 475 U.S. at 2 586. Here, Plaintiff has failed to present any evidence establishing that a genuine issue as to any 3 material fact exists. Fed. R. Civ. P. 56(e). He has tendered no evidence in the form of affidavits or 4 admissible discovery material, nor has he shown the materials cited by Jones do not establish the 5 absence of a material fact. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11; see also 6 Henry, 983 F.2d at 950. 7 Further, the assertions made in Plaintiff’s complaint do not establish the existence of a 8 factual dispute concerning the use of excessive force. While Plaintiff alleges Jones kicked him 9 three times while he lay prone on his stomach and after he was handcuffed, he offers no evidence 10 to refute Defendant’s showing that Plaintiff was not yet handcuffed or in custody when Jones 11 kicked Plaintiff three times to gain compliance. Thus, the evidence establishes that the force 12 employed by Jones was de minimis in these circumstances. Wilkins, 559 U.S. at 37-38 (“The 13 Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from 14 constitutional recognition de minimis uses of physical force, provided that the use of force is not 15 of a sort repugnant to the conscience of mankind”). Plaintiff otherwise has failed to tender any 16 evidence to support his position the Jones’s use of force was excessive. Fed. R. Civ. P. 56(c); 17 McElyea, 833 F.2d at 197-98; Lew, 754 F.2d at 1423. 18 As concerns injury, Plaintiff’s complaint asserts that he suffered both “physically” and 19 “mentally” and would continue to do so because of Jones’s actions. And while the complaint fails 20 to provide any specific information concerning the alleged physical or mental injuries, video 21 evidence presented by Defendants reveals Plaintiff appears to have been bitten by the police dog 22 and suffered at least a laceration to his head. 5 Even assuming it can be reasonably inferred from 23 Plaintiff’s complaint that his injuries were more than de minimis,6 Matsushita, 475 U.S. at 587;

24 5 Documentary evidence indicates Plaintiff received injuries on the date in question. For example, a supplemental narrative dated May 3, 2023, at 12:45 p.m. by Randy Hoppert notes that after Plaintiff was treated by ambulance 25 personnel and then medical personnel at Sierra View Hospital, once Plaintiff was at the Tulare County South County Detention Facility, Hoppert observed “multiple puncture marks on the front of [Plaintiff’s] head consistent with a dog 26 bite,” an 3-inch abrasion on Plaintiff’s left cheek above his left eye brow, a 6-inch bruise on his left hip, and a small bruise on his left buttock. (See Doc. 35-3 at 24-25.) 27 6 Injuries and force “are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 U.S. at 1 Richards, 602 F. Supp. at 1244-45, Plaintiff has failed to establish a genuine dispute of material 2 fact as to all other elements of his excessive force claim. Plaintiff’s complaint does nothing more 3 than “show there is some metaphysical doubt as to the material facts” and is insufficient to 4 overcome Defendant’s unchallenged evidence. Id. at 587. 5 G. Summary of the Court’s Findings 6 Plaintiff has wholly failed to offer proof concerning the essential elements of his Eighth 7 Amendment excessive force claim against Defendant Jones. Celotex, 477 U.S. at 322. Defendant 8 Jones met his initial burden to establish no genuine issue of material fact exists. Plaintiff failed to 9 meet his burden of production to establish otherwise. And nothing in Plaintiff’s complaint 10 establishes the existence of a material fact concerning the use of excessive force. In sum, the 11 record taken as a whole would not lead a rational trier of fact to find for Plaintiff on his Eighth 12 Amendment excessive force claim. Matsushita, 475 U.S. at 587. Therefore, the undersigned will 13 recommend Defendant Jones’s summary judgment motion be granted. 14 Finally, the Court does not specifically address Defendant’s argument that he is entitled to 15 qualified immunity because it has determined that Defendant is entitled to judgment on the merits 16 as discussed above. 17 VI. ORDER AND RECOMMENDATIONS 18 Accordingly, this Court HEREBY ORDERS that the Clerk of the Court randomly assign 19 a district judge to this action. 20 Further, based on the foregoing, this Court HEREBY RECOMMENDS that: 21 1. Defendant’s motion for summary judgment (Doc. 35) be GRANTED; and 22 2. The Clerk of the Court be directed to enter judgment in favor of Defendant Kenneth 23 Jones, II, terminate any pending motions and/or deadlines, and to close this case. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 26 after being served with a copy of these Findings and Recommendations, a party may file written 27 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 1 | leave of Court and good cause shown. The Court will not consider exhibits attached to the 2 || Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 3 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 4 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 5 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 6 | US.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result 7 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 8 | ITISSO ORDERED. 7 | Dated: _ February 17, 2026 | wan D bo 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13