1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL ANTHONY THOMAS, No. 2:22-v-00177-TLN-EFB (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS (ECF Nos. 68, 75) 14 WARE, AVILA, 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. His complaint raises a sole claim against both defendants, that they utilized 19 excessive force against him in violation of his Eighth Amendment rights, and seeks monetary 20 damages. ECF No. 1. Pending before the court is plaintiff’s Request for Order for Audio / Video 21 Surveillance Evidence, ECF No. 75; and defendants’ Opposition thereto. ECF No. 77. Also 22 pending before the court is defendants’ motion for summary judgment, ECF No. 68; plaintiff’s 23 Opposition, ECF No. 74; and defendants’ reply. ECF No. 76. For the reasons set forth herein, 24 the court denies plaintiff’s request and recommends the denial of defendants’ motion. 25 //// 26 //// 27 //// 28 //// 1 BACKGROUND 2 Plaintiff’s complaint, filed January 27, 2022, alleges that defendants Ware and Avila used 3 excessive force against him while he was incarcerated at California State Prison, Sacramento,1 in 4 violation of his rights under the Eighth Amendment. ECF No. 1. Defendants filed an Answer on 5 June 20, 2022, ECF No. 21, and, the following day, the court issued a scheduling order that 6 included a deadline for discovery to be completed and dispositive motions to be filed. ECF No. 7 22. The court subsequently extended some of these deadlines on defendants’ motions. ECF Nos. 8 24, 29, 33, 41, 53. Defendants moved to compel discovery responses on June 5, 2023, which the 9 court granted over plaintiff’s objection. ECF Nos. 30, 48. On January 31, 2024, defendants 10 moved to dismiss the complaint based on plaintiff’s failure to properly respond to discovery 11 requests. ECF No. 52. The district judge denied the motion on September 17, 2024. ECF No. 12 60. 13 On May 16, 2025, defendants filed the instant motion for summary judgment, ECF No. 14 68; to which plaintiff filed an opposition on October 8, 2025, ECF No. 74; and defendants filed a 15 reply on October 20, 2025. ECF No. 76. On October 16, 2025, plaintiff filed a Request for Order 16 for Audio / Video Surveillance Evidence, ECF No. 75; and defendants filed an opposition on 17 October 29, 2025. ECF No. 77. On December 1, 2025, plaintiff filed a request for settlement 18 conference, ECF No. 78, and defendants filed a response requesting that the request be denied or 19 deferred until after the court rules on summary judgment. ECF No. 79. 20 I. REQUEST FOR ORDER FOR AUDIO / VIDEO SURVEILLANCE EVIDENCE 21 Plaintiff’s motion titled, “Request for Order for Audio / Video Surveillance Evidence,” 22 seeks an order compelling defendants to produce to plaintiff audio and video recordings of the 23 “excessive force interview” relating to Incident Report No. 7104821 and Appeal No. 141799. 24 ECF No. 75 at 1. He states that “this evidence plays a decent part in the plaintiff’s evidence
25 1 Plaintiff alleges the incident occurred at “New Folsom” prison, ECF No. 1 at 1, which is 26 the former name of California State Prison, Sacramento. See Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 771 (N.D. Cal. 2008); California State Prison, Sacramento, Details & History, CAL. 27 DEP’T OF CORR. & REHAB. (Jan. 23, 2026), https://www.cdcr.ca.gov/facility-locator/sac; see also ECF No. 21 at 1. 28 1 against defendant.” Id. Defendants oppose that request as untimely. ECF No. 77 at 1-2. 2 Defendants also assert that, to the extent plaintiff is requesting surveillance video of the incident 3 forming the basis of the complaint, none exists because surveillance cameras had not been 4 installed in that part of the building at the time. Id. at 2. For the reasons set forth below, 5 plaintiff’s request is denied. 6 A. Legal Standard 7 The scope and limitations of discovery are set forth by the Federal Rules of Civil 8 Procedure. In relevant part, Rule 26(b) states:
9 Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged manner that is relevant to any party's claim or defense— 10 including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . . For good cause, the court may order 11 discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears 12 reasonably calculated to lead to the discovery of admissible evidence. 13 Fed. R. Civ. P. 26(b). To obtain documents or electronically stored information, or to conduct an 14 inspection of physical evidence, Rule 34 requires a party to serve a request to the opposing party 15 that describes “with reasonable particularity the item or category of items to be inspected.” Fed. 16 R. Civ. P. 34(b)(1)(A). 17 If a party follows the procedures set forth in the Rules and is not provided with the 18 requested discovery, Rule 37 allows that party to file a motion to compel. Fed. R. Civ. P. 19 37(a)(1). The party moving to compel bears the burden of informing the court (1) which 20 discovery requests are the subject of the motion to compel, (2) which of the responses are 21 disputed, (3) why the party believes the response is deficient, (4) why any objections are not 22 justified, and (5) why the information sought through discovery is relevant to the prosecution of 23 this action. O’Connor v. Perez, No. 2:18-CV-1057 DB P, 2020 WL 4748096, at *2 (E.D. Cal. 24 Aug. 17, 2020); McCoy v. Ramirez, No. 1:13-cv-1808-MJS (PC), 2016 WL 3196738, at *1 (E.D. 25 Cal. June 9, 2016); Anderson v. Hansen, No. 1:09-CV-01924-LJO-MJS (PC), 2013 WL 428737, 26 at *1 (E.D. Cal. Feb. 1, 2013); Ellis v. Cambra, No. 1:02-cv-5646-AWI-SMS PC, 2008 WL 27 860523, at *4 (E.D. Cal. Mar. 27, 2008). Although pro se litigants in civil rights cases are not 28 1 held to the same standard as parties with counsel, see Blaisdell v. Frappiea, 729 F.3d 1237, 1241 2 (9th Cir. 2013), a plaintiff must at a minimum “inform[ ] the court of which discovery requests 3 are the subject of his motion to compel,” Waterbury v. Scribner, No. 1:05-CV-0764-OWW-DLB 4 (PC), 2008 WL 2018432 at *1 (E.D. Cal. May 8, 2008); see also Eastern District Local Rule 5 251(d) (“Each specific interrogatory, deposition question or other item objected to . . . shall be 6 reproduced in full.”). 7 B. Discussion 8 Here, even with the lenity granted pro se litigants in civil rights cases, see Blaisdell, 729 9 F.3d at 1241, plaintiff has not met his burden to justify the court entering an order compelling 10 defendants to produce to plaintiff video of his excessive force interview relative to CDCR 11 Incident Report No. 7104821 and Appeal No. 141799. Critically, plaintiff’s request fails to 12 identify the discovery request to which it relates and, if defendants objected to that request when 13 it was made and why those objections were not justified. See Sekona v. Lizarraga, No. 2:17-cv- 14 0346-KJM-EFB-P, 2019 WL 3887331, at *2 (E.D. Cal. Aug. 19, 2019), report and 15 recommendation adopted, No. 2:17-cv-0346-KJM-EFB-P, 2019 WL 5063454 (E.D. Cal. Oct. 9, 16 2019); Waturbury, No. 1:05-cv-0764 OWW DLB PC, 2008 WL 2018432, at *1. Defendants 17 represent, supported with a declaration from counsel, that although plaintiff made discovery 18 requests of them in writing on November 27, 2022, none of these requests included a request for a 19 video of an excessive force interview for Incident Report No. 7104821 and Appeal No. 141799. 20 ECF No. 77 at 1-2 & Decl. of Garrett Suell ¶¶ 1-2. Defendants further argue that the discovery 21 requests made on November 27, 2022, even if they did include a request for the video, were 22 untimely, which defendants communicated to plaintiff by letter on December 19, 2022. Id. 23 Plaintiff has not addressed these objections in his motion. See ECF No. 75. 24 Plaintiff also has not explained why the video is relevant to his case, except to state that it 25 “plays a decent part in the plaintiff’s evidence against the defendants.” Id. at 1. This statement 26 does not provide the court enough information to allow the court to conclude that the excessive 27 force interview video is, in fact, relevant to plaintiff’s claim. See Fed. R. Civ. P. 26(b)(1); Fed. R. 28 Evid. 401 (relevant evidence is “evidence having any tendency to make the existence of any fact 1 that is of consequence to the determination of the action more probable or less probable than it 2 would be without the evidence”); see generally Owen v. Hyundai Motor Am., 344 F.R.D. 531, 3 535 (E.D. Cal. 2023) (“The party seeking to compel discovery has the burden of establishing that 4 its request satisfies the relevancy requirements of Rule 26(b)(1).”). 5 For these reasons, plaintiff has not met his burden to show that the court should issue an 6 order compelling production of the recording he requests, and the court therefore denies the 7 motion. 8 II. MOTION FOR SUMMARY JUDGMENT 9 A. Legal Standards 10 1. Summary Judgment Standard 11 Summary judgment is appropriate when the moving party “shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 13 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 14 issue of material fact,” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 15 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), which it may meet by “citing to particular 16 parts of materials in the record, including depositions, documents, electronically stored 17 information, affidavits or declarations, stipulations (including those made for purposes of the 18 motion only), admissions, interrogatory answers, or other materials” or by showing that such 19 materials “do not establish the absence or presence of a genuine dispute, or that the adverse party 20 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When 21 the non-moving party bears the burden of proof at trial, “the moving party need only prove that 22 there is an absence of evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 23 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary 24 judgment should be entered, after adequate time for discovery and upon motion, against a party 25 who fails to make a showing sufficient to establish the existence of an element essential to that 26 party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. 27 at 322. 28 //// 1 If the moving party meets its initial burden, the burden then shifts to the opposing party to 2 establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 3 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 4 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 5 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 6 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 7 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 8 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 9 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 10 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 11 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 12 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 13 In the endeavor to establish the existence of a factual dispute, the opposing party need not 14 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 15 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 16 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 17 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 18 Matsushita, 475 U.S. at 587 (citations omitted). 19 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 20 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 21 party.” Walls v. Central Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 22 opposing party’s obligation to produce a factual predicate from which the inference may be 23 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 24 aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 25 party “must do more than simply show that there is some metaphysical doubt as to the material 26 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 27 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 28 omitted). 1 By notice filed on May 16, 2025, plaintiff was advised of the requirements for opposing a 2 motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 68-3 3 (citing Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc)). 4 2. Unconstitutionally Excessive Force 5 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 6 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 7 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 8 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is 9 . . . whether force was applied in a good-faith effort to maintain or restore discipline, or 10 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). When 11 determining whether the force was excessive, the court looks to the “extent of injury suffered by 12 an inmate . . ., the need for application of force, the relationship between that need and the 13 amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any 14 efforts made to temper the severity of a forceful response.’” Id. at 7 (quoting Whitley v. Albers, 15 475 U.S. 312, 321 (1986)). While de minimis uses of physical force generally do not implicate 16 the Eighth Amendment, significant injury need not be evident in the context of an excessive force 17 claim, because “[w]hen prison officials maliciously and sadistically use force to cause harm, 18 contemporary standards of decency always are violated.” Id. at 9. 19 B. Facts and Evidence 20 For purposes of summary judgment, the undersigned finds the following facts are 21 undisputed: 22 1. On July 18, 2021, plaintiff was incarcerated at California State Prison, Sacramento, 23 where defendant J. Ware was employed as a correctional sergeant and defendant J. 24 Avila was employed as a correctional officer. ECF No. 1 at 1-3; ECF No. 21 at 1-2. 25 2. Plaintiff is serving a determinate term of eighteen years and is currently housed at 26 California Health Care Facility, Stockton. ECF No. 68, Seuell Decl. ¶ 3, Ex. B; ECF 27 No. 66. 28 //// 1 3. Plaintiff testified during his November 28, 2022 deposition that “only thing that [he] 2 actually saw [Defendant] Avila do was grab [him] and slam [him] to the ground.” 3 ECF No. 68, Seuell Decl. ¶ 3, Ex. A (Pl.’s Dep.) at 19:1-4. 4 4. Plaintiff testified during his November 28, 2022 deposition that he “didn’t see 5 [Defendant] Ware strike[] [him] . . . [and] there’s a possibility he did not touch 6 [Plaintiff].” ECF No. 68, Seuell Decl. ¶ 3, Ex. A (Pl.’s Dep.) at 14:9-17:5. 7 5. On July 18, 2021, Plaintiff received Rules Violation Report (RVR) Log No. 7104821 8 for violating California Code of Regulations (CCR), title 15, section 3005(d)(1), based 9 on the same incident alleged in Plaintiff’s complaint. ECF No. 68, Seuell Decl. ¶ 4, 10 Ex. C at 1-2. 11 6. On July 24, 2024, a disciplinary hearing on RVR Log No. 7104821 was conducted 12 before Senior Hearing Officer (SHO) Lieutenant D. Hobart Jr. ECF No. 68, Seuell 13 Decl. ¶ 4, Ex. C at 2. 14 7. Plaintiff refused to attend the hearing and elected not to participate in the adjudication 15 process. ECF No. 68, Seuell Decl. ¶ 5, Ex. D at 2. 16 8. On July 25, 2024, Plaintiff was found culpable of violating section 3005(d)(1), which 17 prohibits inmates from willfully committing an assault or battery on any person. The 18 SHO found, by a preponderance of the evidence, that nonparty Officer Elizarraras and 19 Defendant Avila were performing their lawful duties by attempting to conduct a cell 20 search when Plaintiff willfully struck Officer Elizarraras in the head and kicked 21 Defendant Avila in the leg, causing injuries to both officers. ECF No. 68, Seuell Decl. 22 ¶ 5, Ex. D at 5. 23 9. The SHO relied on the written testimony of non-party Officer Elizarraras in the RVR, 24 which stated that Plaintiff struck him in the face with his head. ECF No. 68, Seuell 25 Decl. ¶ 5, Ex. D at 6. 26 10. The SHO also considered Crime/Incident Report Log No. 25226, authored by 27 Defendant Avila, which reportedly stated that Plaintiff agreed to exit his cell to allow 28 the officers to conduct a cell search, but then struck Officer Elizarraras with his head 1 as he exited the cell. Defendant Avila reportedly assisted Officer Elizarraras with 2 utilizing physical force to stop the attack and force Plaintiff to the ground. While on 3 the ground, Plaintiff reportedly kicked Defendant Avila in the leg. Additional staff 4 reportedly responded and utilized physical force to subdue Plaintiff, overcome 5 Plaintiff’s resistance, and take him into custody. Following the incident, Defendant 6 Avila reportedly captured photographs showing injury to Officer Elizarraras’ face. 7 ECF No. 68, Seuell Decl. ¶ 5, Ex. D at 6. 8 11. The SHO also reviewed additional Crime/Incident Reports authored by nonparty Sgt. 9 Baker, non-party CO Harrington, and Defendant Ware, who reportedly observed 10 Plaintiff kicking his feet while he was on the ground—conduct consistent with 11 Defendant Avila’s account. ECF No. 68, Seuell Decl. ¶ 5, Ex. D at 6. 12 12. The SHO further considered reports authored by non-party Officers Chavez and 13 Draven, who reportedly observed Plaintiff moving his head in an attempt to strike staff 14 while on the ground, consistent with Officer Elizarraras’ testimony. ECF No. 68, 15 Seuell Decl. ¶ 5, Ex. D at 6. 16 13. The SHO further considered photographic evidence taken by Defendant Avila that 17 reportedly showed bruising and swelling to Officer Elizarraras’ face. ECF No. 68, 18 Seuell Decl. ¶ 5, Ex. D at 6. 19 14. The SHO further considered the Medical Report of Injury or Unusual Occurrence 20 (CDCR 7219), completed by medical staff, which reportedly documented injuries 21 sustained by Officer Elizarraras and Defendant Avila. ECF No. 68, Seuell Decl. ¶ 5, 22 Ex. D at 6. 23 15. Plaintiff did not submit a statement of defense at the hearing. ECF No. 68, Seuell 24 Decl. ¶ 5, Ex. D at 6. 25 16. Plaintiff was assessed a 150-day loss of good-time credits. The Chief Disciplinary 26 Officer affirmed both the guilty finding and the 150-day credit loss. ECF No. 68, 27 Seuell Decl. ¶ 5, Ex. D at 6, 9-10. 28 //// 1 The parties dispute what occurred during the beginning of the cell extraction that, per 2 plaintiff, forms the basis of his complaint. Plaintiff has declared that, on the date in question, he 3 was on a hunger strike as a form of protest against the prison’s lack of programming for EOP 4 inmates.2 ECF No. 74, Decl. of Paul Thomas ¶¶ 5-8. On the date in question, per plaintiff,
5 During third watch, at approximately 5:00 p.m., Sgt. Ware, Officer Avila, and five or six other correctional officers approached my cell. Sgt. Ware informed me 6 that because I was on a hunger strike, they had to search my cell for food. I was about to change and was completely naked when they arrived unannounced. 7 Officer Avila stuck his hand in the air to notify the tower, and the tower officer opened my cell door. I took a step back as the cell door opened and said, “What 8 are you doing, I’m naked!” I was not resisting, I just didn’t want to come out of my cell naked, and felt uncomfortable that the officers were asking me to do so. I 9 started arguing with the officers and asked why I had to come out of the cell. All of a sudden, Officer Avila reached into the cell and pulled me out by my arms. 10 He threw me to the ground in front of the cell and said, “stop resisting!”
11 [] I landed on my stomach, and didn’t have time to catch myself from the fall. My stomach and head came in contact with the ground. Two of the officers who 12 had approached my cell with Sgt. Ware and Officer Avila held me down while another officer, who I think was Officer Avila, punched me in the face. . . . A big 13 white officer whose name I did not know kneed me in the face multiple time. . . . I was naked and unable to defend myself. It all happened very fast. I was in a lot 14 of pain. I was very scared. I felt incredibly vulnerable because I was naked and there were so many officers and only one of me. 15 16 ECF No. 74, Decl. of Paul Thomas ¶¶ 9-10; see also ECF No. 74, Statement of Facts (setting 17 forth similar facts). In a later deposition, plaintiff testified to similar facts, although he testified 18 that defendant Ware and defendant Avila approached his cell together; defendant Ware observed 19 that plaintiff was naked; plaintiff told defendant Ware that he was naked; and defendant Ware 20 then signaled to the control room to open plaintiff’s door, at which point defendant Avila and the 21 other officers attacked plaintiff. ECF No. 68, Seuell Decl. ¶ 3, Ex. A (Pl.’s Dep.) at 14:1-17:5. 22 Plaintiff testified that, once he was on the ground, he did not see if defendant Ware struck him. 23 ECF No. 68, Seuell Decl. ¶ 3, Ex. A (Pl.’s Dep.) at 16:17-17:5. 24 //// 25 //// 26 2 “EOP” refers to the California Department of Corrections and Rehabilitation’s “Enhanced 27 Outpatient Program . . . [which] is for inmates with ‘acute onset or significant decompensation of a serious mental disorder.’” Coleman v. Brown, 28 F. Supp. 3d 1068, 1075 (E.D. Cal. 2014) 28 1 Defendants admit that a cell extraction was conducted on plaintiff on the date at issue but 2 deny that they physically harmed plaintiff or used excessive force. ECF No. 21 at 2. Defendant 3 Ware denies that he instructed the control tower to open plaintiff’s cell door in order to inflict 4 harm on plaintiff. Id. 5 C. Discussion 6 Defendants argue that summary judgment should be granted in their favor pursuant to the 7 favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and that summary 8 judgment should be granted as to defendant Ware due to plaintiff’s inability to prove causation. 9 ECF No. 68 at 5-8. For the reasons set forth below, defendants have not shown that summary 10 judgment is appropriate on either basis. 11 1. Favorable Termination Rule 12 Both defendants seek summary judgment pursuant to the favorable termination rule 13 established in Heck, 512 U.S. 477. In Heck, the Supreme Court held,
14 when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the 15 invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has 16 already been invalidated. 17 Heck, 512 U.S. at 487; see also Edwards v. Balisok, 520 U.S. 641, 643 (1997) (citing same). 18 Subsequently, the Supreme Court expanded this rule to encompass suits where a favorable 19 judgment would necessarily imply the invalidity of a prison disciplinary decision and sanctions 20 therefrom. Edwards, 520 U.S. at 646-48. 21 The Heck rule is narrow. In Heck, the Supreme Court emphasized that, “if the district 22 court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity 23 of any outstanding criminal judgment against the plaintiff, the action should be allowed to 24 proceed.” Heck, 512 U.S. at 487 (emphasis in original); see also Muhammad v. Close, 540 U.S. 25 749, 754 (2004) (rejecting “the mistaken view . . . that Heck applies categorically to all suits 26 challenging prison disciplinary proceedings”); Cunningham v. Gates, 312 F.3d 1148, 1153-54 27 (9th Cir. 2002) (quoting Heck, 512 U.S. at 487 n.6) (“In evaluating whether claims are barred by 28 1 Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by negating ‘an 2 element of the offense of which he has been convicted.’”). To resolve the question of “whether 3 success on a section 1983 claim would necessarily imply the invalidity of a conviction, [the 4 court] must determine which acts formed the basis for the conviction,” Lemos v. County of 5 Sonoma, 40 F.4th 1002, 1006 (9th Cir. 2022) (emphasis in original), and, in a suit claiming 6 excessive force, the court “cannot conclude generally that the plaintiff’s conviction was based on 7 the entire incident as a whole, such that a finding of excessive force at any time during the 8 incident would necessarily conflict with the conviction.” Martell v. Cole, 115 F.4th 1233, 1237 9 (9th Cir. 2024). The defendant bears the burden to establish the basis for the conviction. See 10 Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001). 11 Defendants have not shown that this standard has been met so as to merit summary 12 judgment. Defendants argue that the July 25, 2024 disciplinary finding necessarily precludes 13 plaintiff’s claim. ECF No. 68 at 7. In the disciplinary proceeding, plaintiff was found culpable of 14 violating California Code of Regulations, Title 15, Section 3005(d)(1), which provides, 15 “Incarcerated persons shall not willfully commit or assist another person in the commission of an 16 assault or battery to any person or persons, nor attempt or threaten the use of force or violence 17 upon another person.” Battery is defined by California statute as “any willful and unlawful use of 18 force or violence upon the person of another.” Cal. Penal Code § 242. Thus, the offense of 19 battery “has two stated elements: (1) a use of ‘force or violence’ that is (2) ‘willful and 20 unlawful.’” People v. Miranda, 62 Cal. App. 5th 162, 173 (2021). As such, in determining 21 whether plaintiff violated § 3005(d)(1), the hearing officer only determined whether plaintiff 22 willfully and unlawfully used force or violence on another person. Whether the officers were in 23 the midst of performing their lawful duties at the time of the batteries was not an element of the 24 regulation plaintiff was found culpable of violating; as a matter of law, a person could commit 25 battery against a victim who is acting unlawfully at the time.3 Because none of the elements of 26 3 In contrast, California Penal Code section 243.1 prohibits battery against a custodial 27 officer while “the custodial officer is engaged in the performance of his or her duties.” That language is not included as an element of the regulation plaintiff was found to have violated. See 28 Cal. Code of Regs., Title 15, § 3005(d)(1). 1 the regulation plaintiff was found to have violated implicate whether the victim of the battery had 2 utilized excessive force prior to being battered, Heck presents no impediment to plaintiff’s suit. 3 See Heck, 512 U.S. at 487 n.6 (holding § 1983 suits barred only if plaintiff could prevail only by 4 negating “an element of the offense of which he has been convicted”). 5 Defendants’ argument appears to hinge on the hearing officer’s findings that defendant 6 Avila and Officer Elizarraras “were performing their lawful duties” when plaintiff willfully struck 7 each of them. See ECF No. 68-4 at 5. But what has not yet been determined is whether the 8 officers used excessive force in the performance of their duties in the course of the cell extraction. 9 Defendants have not shown, for example, that if the hearing officer intended the quoted statement 10 to be a factual finding, this factual finding was intrinsic to the hearing officer’s conclusion that 11 plaintiff had committed two acts of battery. Based on the record before the court, it appears the 12 hearing officer had before him no facts as to whether defendants Ware and Avila used excessive 13 force towards plaintiff while initially subduing him onto the ground, before plaintiff began 14 kicking his feet at defendant Avila. The evidence relied on by the hearing officer was Officer 15 Elizarraras’ testimony that he had begun to remove plaintiff from his cell when plaintiff used his 16 head to strike Officer Elizarraras’s cheek. ECF No. 68-4 at 1, 6. Per Officer Elizarraras, 17 defendant Avila then “took control of [plaintiff’s] right side and forced [plaintiff] to the ground,” 18 but Officer Elizarraras had been “unable to see Officer Avila’s hand placement on” plaintiff 19 during this event. Id. at 1. While Officer Elizarraras and defendant Avila restrained plaintiff on 20 the ground, plaintiff reportedly “actively thrash[ed] side to side and kick[ed] his feet up in the 21 air.” Id. (statement of Officer Elizarraras). The hearing officer also considered a Crime / Incident 22 Report authored by defendant Avila, in which the latter stated that after Officer Elizarraras had 23 forced plaintiff to the ground, while plaintiff was on the ground he “continued to provide 24 resistance and was able to kick Officer Avila in the leg.” Id. at 6. The hearing officer also based 25 his determination on Crime / Incident Reports authored by non-parties correctional Sergeant D. 26 Baker and Officer D. Harrington and by defendant Ware, in which they each reportedly 27 “observed [plaintiff] kicking his feet while he was on the ground. Although they did not witness 28 [plaintiff’s] feet contact Officer Avila, this is consistent with his testimony.” Id. Finally, the 1 hearing officer considered a medical report noting injuries to defendant Avila. Id. 2 Ergo, none of these facts relied on by the hearing officer establish what defendants Avila 3 and Ware did to plaintiff when plaintiff was being initially subdued to the ground. This specific 4 part of the event is what forms the basis of plaintiff’s complaint; per plaintiff, when defendant 5 Avila assisted Officer Elizarraras in subduing plaintiff, defendant Avila threw plaintiff to the 6 ground so that plaintiff’s torso and head hit the ground. ECF No. 74, Decl. of Paul Thomas ¶¶ 9- 7 10. Defendant Avila may have then punched him in the face. Id.; see also ECF No. 68-4, Ex. A 8 at 17-19 (plaintiff testifies in deposition that, when his cell door opened, defendant Avila grabbed 9 him by the arm and back and slammed him to the floor). Plaintiff asserts that this conduct 10 constituted excessive force, giving rise to his claim against both defendants. See id.; ECF No. 1 11 at 3. 12 Given this distinction, Heck does not bar plaintiff’s claim against the defendants. Even if 13 plaintiff unlawfully and willfully used force against defendant Avila by kicking him, and against 14 non-party Elizarraras, a jury could also find that defendants Avila and Ware had utilized 15 unlawfully excessive force earlier in the interaction by Avila slamming plaintiff to the ground and 16 punching him in the head, and by defendant Ware’s conduct in facilitating that attack. Because 17 these possibilities are not mutually exclusive as a matter of law or fact, Heck cannot bar plaintiff’s 18 claim. See Hooper, 629 F.3d at 1134; see, e.g., Collins v. Kurgan, No. 2:23-CV-1600 CSK P, 19 2025 WL 3514159, at *1-8 (E.D. Cal. Dec. 8, 2025); Stevenson v. Holland, No. 1:16-cv-01831- 20 AWI-JLT, 2020 WL 264422, at *15 (E.D. Cal. Jan. 17, 2020). Defendants therefore have not 21 shown that summary judgment is merited on this basis. 22 2. Causation as to Defendant Ware 23 Defendant Ware also moves for summary judgment on the basis that there is no 24 admissible evidence that he caused any harm to plaintiff because plaintiff “concedes that he did 25 not witness Defendant Ware strike or even touch him” and “cannot identify any specific conduct 26 by Defendant Ware that would constitute excessive force.” ECF No. 68 at 8. Defendant Ware 27 further argues that he cannot be liable solely on a theory of respondeat superior. Id. 28 //// 1 Defendant Ware’s argument is unavailing. “A supervisory official is liable under § 1983 2 so long as ‘there exists either (1) his or her personal involvement in the constitutional deprivation, 3 or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 4 constitutional violation.’” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798-99 (9th Cir. 5 2018) (quoting Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018), and Starr v. Baca, 652 6 F.3d 1202, 1207 (9th Cir. 2011) ). “The requisite causal connection can be established . . . by 7 setting in motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts 8 by others, which [the supervisor] knew or reasonably should have known would cause others to 9 inflict a constitutional injury.” Starr, 652 F.3d at 1207-08 (internal quotation marks and citations 10 omitted) (alterations in original). Accordingly, a supervisor may “be liable in his individual 11 capacity for his own culpable action or inaction in the training, supervision, or control of his 12 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 13 reckless or callous indifference to the rights of others.” Keates, 883 F.3d at 1243 (quoting Starr, 14 652 F.3d at 1208); see also Rodriguez, 891 F.3d at 798. 15 Here, there is admissible evidence from which a jury could find defendant Ware liable for 16 his role in the alleged excessive force experienced by plaintiff. Plaintiff testified in his deposition 17 that defendants Ware and Avila approached his cell door together on the day in question, and 18 defendant Ware saw that plaintiff was naked and plaintiff exclaimed to him that he was naked. 19 ECF No. 68, Seuell Decl. ¶ 3, Ex. A (Pl.’s Dep.) at 14:1-17:5. Plaintiff testified that, despite 20 defendant Ware knowing plaintiff was naked at the time, defendant Ware signaled for the control 21 tower to open the cell door. Id. Defendant Avila then immediately attacked plaintiff, then other 22 correctional officers attacked him, and defendant Ware did not intervene. Id. Plaintiff believed 23 that defendant Ware was motived by the same retaliatory animus against him that defendant Avila 24 also possessed. Id. Crediting plaintiff’s testimony, see Walls, 653 F.3d at 966, a factfinder could 25 find that defendant Ware had acted in concert with defendant Avila and signaled to the control 26 tower to open plaintiff’s cell door in order to permit defendant Avila to batter plaintiff. If 27 plaintiff’s testimony is credited at trial, a factfinder could also find that defendant Ware’s 28 presence while correctional officers were battering plaintiff and his decision not to intervene or to 1 attempt to control his subordinates itself constituted a proximate cause of the deprivation of 2 plaintiff’s Eighth Amendment rights. See Rodriguez, 891 F.3d at 798-99; Starr, 652 F.3d at 3 1207-08; see, e.g., Pizzuto v. Cnty. of Nassau, 239 F. Supp. 2d 301, 310 (E.D.N.Y. 2003) (on 4 similar facts, granting summary judgment in favor of plaintiff against correctional officer 5 defendant). On this record, therefore, defendant Ware has not shown that there is no genuine 6 issue of material fact on the question of causation and the undersigned recommends his motion be 7 denied. See Celotex Corp., 477 U.S. at 323. 8 CONCLUSION AND ORDER 9 Accordingly, it is hereby ORDERED that Plaintiff’s Request for Order for Audio / Video 10 Surveillance Evidence (ECF No. 75) is denied. 11 It is further RECOMMENDED that Defendants’ Motion for Summary Judgment (ECF 12 No. 68) be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: February 12, 2026 21 22 23 24 25 26 27 28