(PC) Arrant v. Santoro

• Court: District Court, E.D. California
• Decided: November 25, 2024
• Docket: 1:20-cv-01253
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN R. PLAINTIFF, No. 1:20-cv-01253-KES-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION 13 v. FOR SUMMARY JUDGMENT 14 KELLY SANTORO, et al., (ECF No. 81) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 18 to 42 U.S.C. § 1983. 19 Currently before the Court is Defendants’ motion for summary judgment, filed January 20 10, 2024. (ECF No. 81.) 21 I. 22 PROCEDURAL BACKGROUND 23 This action is proceeding Defendants Dodson, Garcia, and Tapia for retaliation, and 24 separate excessive force claims against Defendants J. Florez and Tapia. 25 Defendants filed an answer to the complaint on July 1, 2021. 26 The Court issued the discovery and scheduling order on September 17, 2021. 27 On December 17, 2021, Defendants filed a motion for summary judgment on the ground 28 1 of failure to exhaust the administrative remedies.1 Plaintiff filed an opposition on February 22, 2 2022, and Defendants filed a reply on March 4, 2022. 3 On October 5, 2022, Defendants’ exhaustion motion for summary judgment was granted 4 in part and denied in part. (ECF No. 56.) More specifically, Defendants motion was granted as 5 to the retaliation claims against Defendants Lozano, Valdez, Felix, A. Flores, and Chanelo, and 6 denied as to the retaliation claims against Defendants Dodson and Garcia. (Id.) 7 As previously stated, on January 10, 2024, Defendants filed the instant motion for 8 summary judgment on the merits of Plaintiff’s remaining claims. (ECF No. 81.) Plaintiff filed an 9 opposition on April 5, 2024, and Defendants filed a reply on May 3, 2024. (ECF Nos. 90, 93.) 10 II. 11 LEGAL STANDARD 12 A. Summary Judgment Standard 13 Any party may move for summary judgment, and the Court shall grant summary judgment 14 if the movant shows that there is no genuine dispute as to any material fact and the movant is 15 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); 16 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 17 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular 18 parts of materials in the record, including but not limited to depositions, documents, declarations, 19 or discovery; or (2) showing that the materials cited do not establish the presence or absence of a 20 genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. 21 Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the 22 record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen 23 v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. 24 Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 25 In judging the evidence at the summary judgment stage, the Court does not make 26 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509

27 1 Defendants J. Florez and D. Tapia did not move for summary judgment for failure to exhaust the administrative remedies. 28 1 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 2 inferences in the light most favorable to the nonmoving party and determine whether a genuine 3 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 4 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation 5 omitted). 6 In arriving at these Findings and Recommendations, the Court carefully reviewed and 7 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 8 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 9 reference to an argument, document, paper, or objection is not to be construed to the effect that 10 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 11 reviewed and considered the evidence it deemed admissible, material, and appropriate. 12 III. 13 DISCUSSION 14 A. Summary of Plaintiff’s Complaint 15 In March 2018, while at NKSP Plaintiff was in route to A-yard dining hall for the evening 16 meal. As the Plaintiff was entering the dining hall, the entrance was blocked by an unidentified 17 inmate who was surrounded by six or seven program officers. The officers were inciting the 18 inmate. The inmate was an elderly African American who needed the assistance of a walking 19 cane. As the Plaintiff proceeded to enter the dining hall, he asked the elderly inmate if he was 20 okay, and officer Dodson told Plaintiff to keep walking. Plaintiff complied with the order. 21 Officer Dodson immediately began conversing with officer E. Garcia about the Plaintiff. Once 22 Plaintiff was exiting the dining hall, officer Garcia stated, “are you Plaintiff” while shaking his 23 head “up and down” with an unpleasant smirk in an attempt to incite Plaintiff. Prior to this 24 incident, Plaintiff spoke with lieutenant A. Flores about building B officers not giving inmates a 25 courtesy unlock to use the restroom because the building dayroom did not have a toilet. 26 Lieutenant Flores responded, “you think you can come and change things around here.” Flores 27 also stated, “you can live here peacefully, or have a target on your back.” Plaintiff filed an inmate 28 grievance regarding Flores’s conduct. After Plaintiff filed the grievance, officers that worked on 1 the A-yard program began “mean mugging” Plaintiff calling him a “snitch” and using intimating 2 language toward Plaintiff adding “snitches get stitches.” When Plaintiff would go to yard, 3 medical, or dining hall and program office, officers around would make comments while 4 “pointing” at Plaintiff. 5 On May 29, 2018, Plaintiff would experience the “first” retaliatory event promised by 6 lieutenant A. Flores. As Plaintiff was exiting his building for evening yard, “A” yard tower told 7 “all” of the inmates to move to the “center” of the yard for “escorted movement.” Approximately 8 two hundred inmates were moving to the center of the yard when the prisoner alarm sounded. 9 The yard tower officer told all inmates to “get down.” Plaintiff complied as did the majority of 10 inmates. Officers Garcia, Dodson, lieutenant Flores and other unidentified officers started cuffing 11 and escorting inmates to “A” yard gym, and placed them in cages. All the escorted inmates were 12 ordered to remove their clothing so a nurse could examine their bodies. Plaintiff was later 13 released from the gym cages and told to go see lieutenant Flores in the program office to sign a 14 chrono. This process was “odd” to Plaintiff because he “was not” a participant in the cause of the 15 alarm activation. Plaintiff attempted to read the chrono but the font was too small and he could 16 not read it without his prescription glasses. When Plaintiff asked officer Garcia for his reading 17 glasses, Garcia became volatile and snatched the paper chrono out of Plaintiff’s hand and said, 18 “I’m putting your black ass back in the cage.” While Plaintiff was being escorted back to the 19 gym cage, lieutenant Flores told Plaintiff, “if you don’t sign the chrono,” I’m going to place you 20 in “Ad-Seg” for safety concerns. 21 Plaintiff told Flores that he was attempting to falsify state documents. “A” yard program 22 officers surrounded Plaintiff in an inciting manner challenging him to a fight. In addition, 23 officers Garcia and Dodson searched Plaintiff’s cell destroying his personal property and federal 24 court documents the Plaintiff was working on in an ongoing civil case. Plaintiff filed an inmate 25 grievance regarding the property destruction. 26 On June 8, 2018, Plaintiff was served a false Rules Violation Report (RVR) Log No. 27 5092331 in retaliation for Plaintiff filing a staff complaint on May 30, 2018, appeal number 28 NKSP-A-18-2054. The false RVR was dismissed in the interest of justice because the charges 1 could not be substantiated. 2 In response, “A” yard program officers generated another false RVR against Plaintiff. 3 This RVR accused Plaintiff of having contraband in his cell-a cellular device. 4 On July 23, 2018, officer Garcia indicated he was writing his report in “lieu” of officer 5 Maldonado because Maldonado was unable to enter the prison’s computer system. 6 On July 31, 2018, officer Garcia generated RVR Log No. 5343660 as the “reporting 7 employee” giving a detailed report. 8 On August 31, 2018, lieutenant Smith who was not a regular Senior Hearing Officer 9 (SHO) on “A” yard effortlessly sensed the “fishiness” of the RVR No. 5343660 and dismissed it 10 in the interest of justice. 11 Plaintiff filed another inmate grievance appeal number NKSP-A-18-4014 against officer 12 Garcia for retaliation and falsification of state documents to punish Plaintiff for exercising his 13 constitutional right to file a grievance. 14 On August 7, 2018, Plaintiff a Form-22 request to building officer A. Terronez regarding 15 officer Garcia’s issuance the second RVR. Terronez responded stating that Plaintiff was in need 16 of a cell search receipt from the officer who searched his cell because contraband was found. 17 Plaintiff filed another grievance appeal number NKSP-A-18-2588 regarding the false 18 RVR being issued without penal interest. 19 At all pertinent times, Plaintiff was a Correctional Clinical Case Management System 20 (CCCMS) participant diagnosed with a “depressive” disorder and suffers from anxiety. 21 On October 17, 2018, Plaintiff consulted correctional counselor A. Padilla about the 22 incidents that took place against him and asked for a transfer to another institution because he 23 feared for his safety at NKSP. Counselor Padilla agreed to transfer Plaintiff. On this same date, a 24 hearing was held on the transfer and Plaintiff conveyed to the committee that he was constantly 25 harassed by NKSP custody staff. Captain Chanelo denied Plaintiff’s transfer leaving him in 26 harm. Counselor Padilla and captain Chanelo did not investigate Plaintiff’s concerns. Plaintiff 27 promptly filed a grievance appeal number NKSP-A-18-4420, in which Plaintiff mentioned he was 28 being harassed and retaliated against by having to strip naked in front of the opposite sex and his 1 contentions were not investigated. Plaintiff’s contentions were not investigated. 2 On December 12, 2018, officer Herrera retaliated against Plaintiff by issuing a false RVR 3 counseling chrono accusing Plaintiff of disobeying an order. 4 On December 19, 2018, Plaintiff sent officer Herrera a Form 22 request indicating that he 5 was in front of building 1 which is on the opposition side of building 5. Plaintiff also indicated 6 that he has a medical ailment in his leg in which hardware was inserted due to a compound 7 fracture. When the season changes to a cold climate Plaintiff experiences discomfort if he moves 8 too fast. 9 On December 12, 2018, Plaintiff filed a Form 22 request regarding officer Ortega’s 10 regarding Ortega’s action in closing the door after yard recall. Ortega responded stating, “I did 11 what I was instructed to do, close the front door, not knowing who was outside.” 12 Officer Herrera never answered Plaintiff’s Form 22 request. Plaintiff also asked inmate 13 Rutherford if he received an RVR and he said he “did not.” 14 On January 14, 2019, Plaintiff was issued another falsified RVR in retaliation for 15 reporting the officers misconduct. Plaintiff was charged with possession of dangerous 16 contraband, a state issued shaving razor. Officer D. Ceballos searched Plaintiff’s cell and 17 removed a “state issued” shaving razor which was in plain view in Plaintiff’s cell locker. 18 Ceballos provided Plaintiff with a cell search receipt and classified the razor as a “weapon.” 19 Officers Luna and Ornelas told lieutenant Flores that the razor was not a weapon or 20 dangerous contraband. However, lieutenant Flores found Plaintiff guilty of the RVR. Plaintiff 21 filed a grievance appeal number NKSP-A-19-0445 against Flores and captain Chanelo for 22 ordering officer Ceballos to leave his assigned post to harass Plaintiff by issuing a false RVR in 23 retaliation for exercising his rights to file a grievance. 24 On May 18, 2019, Plaintiff’s cell was searched again by officer Valdez for over thirty 25 minutes. When Plaintiff entered his cell after the search, it appeared that “nothing” had been 26 touched or searched. Valdez left Plaintiff’s cell and walked to the building 5 office. Shortly 27 after, Valdez went back to Plaintiff’s cell and said he found “contraband” in Plaintiff’s cell, 28 namely, a cellular device. Valdez issued Plaintiff two separate false RVRs for the same violation 1 in retaliation for filing prior grievances. The RVR for the cellular device was dismissed. Plaintiff 2 filed grievance appeal number NKSP-X-19-03401, and once again Plaintiff’s right to appeal was 3 impeded with “no” real reason why. 4 On May 18, 2019, Plaintiff made contact with officer Baez and expressed that his safety 5 was in danger by “A” yard staff and he was the subject of constant harassment. Shortly 6 thereafter, sergeant Dement and five other “A” yard officers cuffed Plaintiff and escorted him to 7 the “A” yard gym cages for administrative segregation pending investigation of his safety 8 concerns. After waiting in the cage, a registered nurse presented a 7219 incident report package 9 and ordered Plaintiff to strip down for a body examination for administrative segregation 10 placement. After waiting in the cage for several more hours, Plaintiff saw all his personal 11 property in boxes wheeled in front of him. Then, officers Felix and Florez appeared at Plaintiff’s 12 cage and said, “special orders from captain Chanelo you are going back to five block.” Plaintiff 13 followed officer Florez’s order to cuff up. When Plaintiff placed his hands through the cage slot 14 to be cuffed, Florez squeezed Plaintiff’s fingers together on his right hand and slammed the 15 Plaintiff’s hand against the cage slot. Plaintiff felt the bone in his right hand “pop.” As Plaintiff 16 was being escorted back to building 5, officer Florez pinned Plaintiff’s arm up like a wrestler. 17 Plaintiff asked Florez why he was so rough with his escort even though Plaintiff complied with 18 all orders. Florez did not respond and continued with the unnecessary use of force. 19 As Plaintiff and the five to six officers reached building 5, Plaintiff expressed suicidal 20 ideations so he could be separated from “A” yard staff. Plaintiff was taken off of “A” yard and 21 taken to the hospital. Plaintiff filed another grievance appeal number NKSP-19-01927 regarding 22 Florez’s unnecessary use of force. Plaintiff made contact with Ibrerra who asked to see Plaintiff’s 23 identification card. Once Ibrerra saw Plaintiff’s name he stated, “O-yeah I remember you.” He 24 then told Plaintiff to sit tight, and Plaintiff complied. Ibrerra made a phone call and a few 25 minutes later about nine to twelve officers went into the building. Tapia told Plaintiff “are you 26 fucking stupid” and ordered him to stand up. Tapia snatched some legal documents Plaintiff had 27 in his hand and threw them on the floor. Tapia then escorted Plaintiff outside the building and 28 once outside he pushed and threw Plaintiff against the wall. Plaintiff felt his knee “pop.” Tapia 1 then slammed Plaintiff to the ground and told him “fuck your rights and the Judge.” Tapia then 2 stated, “you wanna make video complaints against my partner,” and kicked Plaintiff twice in the 3 chest. Thereafter, Tapia dragged Plaintiff back up to his feet while he was cuffed behind his back 4 and escorted him to the gym cages. Once Plaintiff was back inside the gym, Tapia challenged 5 Plaintiff to a fight. While in the cages, officers Mendez and Robinson conducted a 7219 incident 6 report, and as Robinson examined Plaintiff’s body she stated, “Oh God” when she saw his 7 injuries. After Robinson left, officer Mendez said, “snitching ain’t gone get you nowhere.” 8 Plaintiff then requested to see a lieutenant so he could report the second incident of unnecessary 9 use of force. Lieutenant Knight video recorded the Plaintiff on May 24, 2019, and started another 10 investigation. 11 Plaintiff went back to the hospital and Doctor Girouard noticed new injuries and 12 instructed Plaintiff to draft a “keep away” request on a Form 22 and he would personally deliver 13 it to captain Chanelo. On May 29, 2019, Plaintiff drafted the Form 22 and delivered it directly to 14 captain Chanelo who denied the request even after Plaintiff was subjected to unnecessary use of 15 force. 16 B. Statement of Undisputed Facts2,3 17 1. Plaintiff Melvin Plaintiff, who is proceeding pro se, is a former inmate with the 18 California Department of Corrections and Rehabilitation (CDCR). (ECF No. 1; ECF No. 51.) 19 2. Between May 2018 and May 2019 and prior to his release from incarceration, 20 Plaintiff was an inmate at North Kern State Prison (NKSP). (ECF No. 1 at 1.) 21 3. In May 2018 and July 2018, Defendant-Officers Dodson and Garcia were working 22 at NKSP as a correctional officers. (Declaration of Garcia (Garcia Decl.) ¶ 2; Declaration of 23 Dodson (Dodson Decl.) ¶ 2.) 24

25 2 Plaintiff neither filed his own separate statement of disputed facts nor admitted or denied the facts set forth by defendant as undisputed. Local Rule 56-260(b). Therefore, Defendants’ statement of undisputed facts is accepted except where brought into dispute by Plaintiff’s verified complaint and opposition. Jones v. Blanas, 393 F.3d 918, 26 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in evidence). 27

3 Hereinafter referred to as “UF.” 28 1 4. In May 2019, Defendant-Officer Florez and Defendant-Sergeant Tapia were 2 working at NKSP as correctional officers. (Declaration of Florez (Florez Decl.) ¶ 2; Declaration 3 of Tapia (Tapia Decl.) ¶ 1.) 4 5. Plaintiff proceeds on a First Amendment retaliation claim against Officers Dodson 5 and Garcia arising from a May 29, 2018 entry into Plaintiff’s cell. (ECF No. 1 at 21-22; ECF No. 6 11 at 11.) 7 6. Plaintiff proceeds on a First Amendment retaliation claim against Officer Garcia 8 relating to a RVR Officer Garcia submitted on July 23, 2018. (ECF No. 1 at 12-13; ECF No. 11 9 at 11.) 10 7. Plaintiff proceeds on an Eighth Amendment excessive force claim against Officer 11 Florez alleging that, on May 18, 2019, Officer Florez used excessive force when restraining and 12 escorting Plaintiff. (ECF No. 1 at 21-22; ECF No. 11 at 11.) 13 8. Plaintiff proceeds on Eighth Amendment excessive force and First Amendment 14 retaliation claims associated with Sergeant Tapia’s May 24, 2019 escort of Plaintiff. (ECF No. 1 15 at 23-24; ECF No. 11 at 11; ECF No. 13.) 16 9. The remainder of Plaintiff’s claims were dismissed when the Court screened 17 Plaintiff’s complaint and when the Court partially granted Defendants’ exhaustion-based motion 18 for summary judgment. (ECF Nos. 1, 11, 52, 56.) 19 10. In the evening on May 29, 2018, an inmate fight triggered an alarm announced via 20 institutional radio requesting correctional officers respond to the Facility A Exercise Yard. 21 (Garcia Decl. ¶ 3; Dodson Decl. ¶ 3.) 22 11. Officer Garcia responded to the location of the fight. (Garcia Decl. ¶ 3.) 23 12. Plaintiff was restrained in handcuffs. (Garcia Decl. ¶ 3.) 24 13. In response to the fight, Officer Dodson arrived on the yard while other officers 25 were in the process of escorting the involved inmates towards the Facility A Gym. (Dodson Decl. 26 ¶ 4.) 27 14. Plaintiff and other inmates were escorted to holding cells located in the gym, and 28 Officers Garcia and Dodson also proceeded to the gym. (Garcia Decl. ¶ 3; Dodson Decl. ¶ 4.) 1 15. Plaintiff concedes identifying inmates based on their identification card is 2 important. (Declaration of Georgely (Georgely Decl.) ¶ 2 & Ex. A (Pl. Dep. at 31:19-32:1.) 3 16. The inmates identified as participating in the fight were interviewed in the gym 4 and then escorted into the adjoining Facility A Program Office. (Garcia Decl. ¶ 4.) 5 17. From the time he was detained after the fight to when he returned to his cell in 6 Building 5, Plaintiff did not witness Officer Dodson, Officer Garcia, or any officer enter his cell. 7 (Georgely Decl. ¶ 2 & Ex. A, at 73:18-23.) 8 18. On July 3, 2018, in reply to the response in grievance log number NKSP-A-18- 9 02588, Plaintiff wrote: “E. Dodson and E. Garcia searched my cell and destroyed my personal 10 property on 5-29-2018 in retaliation of me being [i]nvolved in the alleged incident on 5-29-2018.” 11 (Decl. Appeals Coordinator Magallanes (Magallanes Decl.), ECF No. 46-5 at 92.) 12 19. Inmate possession of cell phones poses a serious risk to the safety and security of 13 NKSP. (Declaration of Valdez (Valdez Decl.) ¶ 7.) 14 20. Inmates at NKSP use cell phones for purposes that pose a safety and security 15 threat, including to arrange for the physical injury of other inmates and prison employees, traffic 16 drugs or other contraband, arrange for money transfers, manage criminal enterprises, and 17 facilitate criminal communications with inmates and non-inmates. (Valdez Decl. ¶ 7.) 18 21. Because Sergeant Maldonado’s shift ended at 2:00 p.m., he was unable to submit 19 the rules violation report for Plaintiff’s possession of a contraband cell phone. (Garcia Decl. ¶ 6 20 & Ex. A; Declaration of Maldonado.4 (Maldonado Decl.) ¶ 4.) 21 22. Before the end of his shift, Sergeant Maldonado wrote the circumstances of the 22 violation documenting Plaintiff’s cell phone possession. (Garcia Decl. ¶ 6; Maldonado Decl. ¶ 3.) 23 23. Officer Garcia, who was working the next shift that began at 2:00 p.m. that day, 24 submitted the report documenting Plaintiff’s possession of a cell phone as instructed on Sergeant 25 Maldonado’s behalf. (Garcia Decl. ¶ 7 & Ex. A; Maldonado Decl. ¶ 4.) 26 4 Plaintiff attempts to dispute this fact by arguing that Defendant Garcia’s reason for imputing the RVR has now 27 changed because the RVR states that officer Maldonado was “unable to personally enter the report into SOMS.” (ECF No. 90 at 18 & Ex. B.) However, Defendant’s statement of fact simply expands on the reason why Garcia 28 entered the RVR into SOMS and is consistent, not contrary to, the statement reflected on the RVR. 1 24. Having Officer Garcia submit the rules violation report on Sergeant Maldonado’s 2 behalf ensured the prompt reporting of the rules infraction. (Garcia Decl. ¶ 7 & Ex. A; 3 Maldonado Decl. ¶ 4.) 4 25. In the “circumstances of violation” section, Officer Garcia indicated he was 5 submitting the rules violation report on Sergeant Maldonado’s behalf by writing: “I Officer E. 6 Garcia am writing this report in lieu of Officer M. Maldonado due to him being unable to 7 personally enter the report into SOMS.” (Garcia Decl. ¶ 7 & Ex. A.) 8 26. On May 18, 2019, at around 10:35 a.m., non-party Officer Valdez conducted a 9 random cell search of Plaintiff’s cell in Building 5 and located a cell phone. (Valdez Decl. ¶¶ 4–5 10 & Exs. A–B.) 11 27. At approximately 12:00 p.m. on May 18, 2019, Plaintiff was placed in a holding 12 cell located in the Facility A Gym for security reasons. (Declaration of Felix (Felix Decl.) ¶ 4 & 13 Ex. A.) 14 28. Minutes after being placed in the holding cell at approximately 12:00 p.m. on May 15 18, 2019, non-party Licensed Vocational Nurse Robinson evaluated Plaintiff and concluded he 16 did not have any injuries. (Declaration of Robinson (Robinson Decl.) ¶ 5 & Ex. B.) 17 29. At approximately 3:35 p.m., Defendant Florez was ordered to escort Plaintiff to 18 Building 5. (Felix Decl. ¶ 5 & Ex. A.) 19 30. To prepare for the escort, Officer Florez instructed Plaintiff to put his hands 20 behind his back and place his hands through the small handcuff port in the holding cell. (Florez 21 Decl. ¶ 3.) 22 31. Non-party Sergeant Felix assisted with the escort by walking a few feet behind 23 Plaintiff and Defendant Florez. (Felix Decl. ¶ 5.) 24 32. When Officer Florez, Sergeant Felix, and Plaintiff were more than halfway to 25 Building 5, Plaintiff stated that he was suicidal. (Florez Decl. ¶ 4.) 26 33. Plaintiff admits this claim of being suicidal was not true. (Georgely Decl. ¶ 2 & 27 Ex. A (Pl. Dep. at 121:14-21.) 28 34. In response to Plaintiff’s claiming to be suicidal, Sergeant Felix instructed 1 Defendant Florez to escort Plaintiff back to the gym. (Florez Decl. ¶ 4; Felix Decl. ¶ 6 & Ex. B.) 2 35. At approximately 3:40 p.m., no more than five minutes after Plaintiff was ordered 3 to be released to Building 5, Defendant Florez placed Plaintiff back in the same holding cell in 4 the gym. (Felix Decl. ¶ 7 & Ex. B; Florez Decl. ¶ 5.) 5 36. Defendant Florez and Sergeant Felix prepared a new holding cell log to document 6 Plaintiff’s holding-cell placement. (Florez Decl. ¶ 5; Felix Decl. ¶ 7 & Ex. B.) 7 37. In accordance with policy after placing an inmate in a holding cell, Defendant 8 Florez conducted an unclothed body search of Plaintiff. (Florez Decl. ¶ 5.) 9 38. During his unclothed body search of Plaintiff, Officer Florez did not see anything 10 on Plaintiff’s body to indicate Plaintiff had any injuries. (Florez Decl. ¶ 5.) 11 39. On May 18, 2019, Nurse Robinson concluded Plaintiff had no injuries. (Robinson 12 Decl. ¶ 6 & Exs. A–B.) 13 40. Nurse Robinson documented on a CDCR Form 7219 Plaintiff’s lack of injuries 14 and Plaintiff’s no comment as to whether he had any injuries. (Robinson Decl. ¶ 6 & Ex. A.) 15 41. When Nurse Robinson returned to the Facility A Medical Clinic, a few minutes 16 after she examined Plaintiff, she entered a progress note into Plaintiff’s health records 17 memorializing her observations and conclusion that Plaintiff had no injuries. (Robinson Decl. ¶ 6 18 & Ex. B.) 19 42. That evening, Sergeant Felix authorized Plaintiff to be released from the holding 20 cell to medical staff because he claimed to be suicidal. (Felix Decl. ¶ 7 & Ex. B.) 21 43. On May 21, 2019, x-rays were taken of Plaintiff’s right hand, wrist, and shoulder. 22 (Declaration of Alphonso (Alphonso Decl.) ¶ 4 & Ex. A.) 23 44. The May 21, 2019 x-rays did not identify any present or recent injury to Plaintiff’s 24 right wrist, hand, or shoulder. (Alphonso Decl. ¶ 4 & Ex. A.) 25 45. On May 24, 2019, at around 5:00 p.m., Defendant Tapia responded to Building 4 26 to escort Plaintiff to the Facility A Gym. (Declaration of Tapia (Tapia Decl.) ¶ 3.) 27 46. At that time, Defendant Tapia was assigned to and working a shift as a Facility A 28 Security Patrol Officer. (Tapia Decl. ¶ 3.) 1 47. When Defendant Tapia responded to this escort, he knew Plaintiff had recently 2 been reassigned to general population from the mental-health unit several times after Plaintiff had 3 claimed he could not safely remain in general population. (Tapia Decl. ¶ 3.) 4 48. Between May 18, 2019 and May 24, 2019, Plaintiff was twice reassigned to 5 general population in Facility A from the mental-health unit at NKSP. (Tapia Decl. ¶ 2.) 6 49. NKSP’s Investigative Services Unit is tasked with investigating the veracity of 7 inmate-reported safety concerns that could result in an inmate being assigned to a non-general 8 population housing unit. (Tapia Decl. ¶¶ 2–3.) 9 50. The officers assigned to Building 4 informed Defendant Tapia that they needed 10 assistance in escorting Plaintiff. (Tapia Decl. ¶ 3.) 11 51. The officers assigned to Building 4 informed Sergeant Tapia that Plaintiff told 12 them that he was suicidal. (Tapia Decl. ¶ 3.) 13 52. Sergeant Tapia encountered Plaintiff in the dayroom of Building 4. (Tapia Decl. ¶ 14 3.) 15 53. Non-party Officer Hurley assisted with the escort. Tapia Decl. ¶ 4; Declaration of 16 Hurley (Hurley Decl.) ¶ 3.) 17 54. At approximately 5:20 p.m. on May 24, 2019, Nurse Robinson examined Plaintiff 18 in the holding cell. (Robinson Decl. ¶ 7.) 19 55. Nurse Robinson concluded that, besides an abrasion to his right knee, Plaintiff had 20 no injuries. (Robinson Decl. ¶ 7.) 21 56. At approximately 8:35 p.m. on May 24, 2019, Nurse Robinson again examined 22 Plaintiff in the holding cell. (Robinson Decl. ¶ 7.) 23 57. During her 8:35 p.m. examination, Nurse Robinson again observed the abrasion on 24 Plaintiff’s right knee. (Robinson Decl. ¶ 7.) 25 58. During her 8:35 p.m. examination, Nurse Robinson observed new injuries in the 26 form of an abrasion to Plaintiff’s right elbow and discoloration to Plaintiff’s left wrist. (Robinson 27 Decl. ¶ 7.) 28 59. Nurse Robinson concluded Plaintiff had no other injuries. (Robinson Decl. ¶ 7.) 1 60. In the morning on May 25, 2019, non-party Dr. Alphonso examined Plaintiff. 2 (Alphonso Decl. ¶ 5.) 3 61. During the May 25, 2019 encounter, Dr. Alphonso ordered x-rays of Plaintiff’s 4 right wrist and knee. (Alphonso Decl. ¶ 5.) 5 62. Dr. Alphonso documented that Plaintiff was uncooperative during his May 25, 6 2019 examination. (Alphonso Decl. ¶ 5.) 7 63. The only injury Dr. Alphonso saw during his May 25, 2019 examination of 8 Plaintiff was an abrasion and bruise on Plaintiff’s right knee. (Alphonso Decl. ¶ 5.) 9 64. On May 28, 2019, Plaintiff had his right wrist and knee x-rayed as ordered. 10 (Alphonso Decl. ¶ 5 & Ex. B.) 11 65. The May 28, 2019 x-ray of Plaintiff’s right knee was compared with a September 12 2015 x-ray of Plaintiff’s right knee. (Alphonso Decl. ¶ 5 & Ex. B.) 13 66. Based on comparison, there was no finding of any recent injury to Plaintiff’s knee. 14 (Alphonso Decl. ¶ 5 & Ex. B.) 15 67. The May 28, 2019 x-ray of Plaintiff’s right wrist was compared with the May 21, 16 2019 x-ray of Plaintiff’s right wrist. (Alphonso Decl. ¶ 5 & Ex. B.) 17 68. Based on the comparison, there was no finding of any recent injury to Plaintiff’s 18 right wrist. (Alphonso Decl. ¶ 5 & Ex. B.) 19 69. Based on the x-rays of Plaintiff’s right wrist and knee, Dr. Alphonso concluded 20 that the status of Plaintiff’s right wrist and knee were normal and unchanged from prior x-rays. 21 70. After reviewing Plaintiff’s May 28, 2019 x-rays, Dr. Alphonso prepared a patient 22 letter to Plaintiff informing Plaintiff that his x-ray results were within normal limits or unchanged 23 and that no follow up was needed. (Alphonso Decl. ¶ 6 & Ex. C.) 24 III. 25 DISCUSSION 26 A. Retaliation 27 “Prisoners have a First Amendment right to file grievances against prison officials and to 28 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 1 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 2 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 3 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 4 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 5 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 6 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 7 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 8 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). Mere verbal harassment or abuse does not violate the 9 Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. 10 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). In addition, threats do not rise to the 11 level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 12 To state a cognizable retaliation claim, Plaintiff must establish a nexus between the 13 retaliatory act and the protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. 14 Wash. 2014). Thus, not every allegedly adverse action will support a retaliation claim. See, e.g., 15 Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on 16 “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’ ”) 17 (citation omitted). 18 To prove retaliatory motive, plaintiff must show that his protected activities were a 19 “substantial” or “motivating” factor behind the defendant’s challenged conduct. Brodheim, 584 20 F.3d at 1271 (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). 21 Plaintiff must provide direct or circumstantial evidence of defendant's alleged retaliatory motive; 22 mere speculation is not sufficient. See McCollum v. Cal. Dep’t Corr. Rehab., 647 F.3d 870, 882- 23 83 (9th Cir. 2011); accord, Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to 24 demonstrating defendant’s knowledge of plaintiff’s protected conduct, circumstantial evidence of 25 motive may include: (1) proximity in time between the protected conduct and the alleged 26 retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other evidence 27 showing that defendant’s reasons for the challenged action were false or pretextual. McCollum, 28 647 F.3d at 882 (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). 1 1. Defendants Dodson and Garcia 2 Plaintiff alleges that after he expressed a desire to file a grievance for trying to threaten 3 and intimidate him to sign a false chrono, his cell was searched in retaliation by Defendants 4 Garcia and Dodson and some of his personal property was destroyed. 5 Defendants argue that the undisputed facts show that, in May 2018, neither Defendants 6 Garcia nor Dodson damaged Plaintiff’s cell, and there is no evidence that they did so because 7 Plaintiff exercised his rights under the First Amendment. 8 Here, it is undisputed that on the evening of May 29, 2018, an inmate fight triggered an 9 alarm announced via institutional radio requesting correctional officers respond to the Facility A 10 Exercise Yard. (UF 10.) Defendant Garcia responded to the location of the fight. (UF 11.) 11 Plaintiff was restrained in handcuffs. (UF 12.) 12 In response to the fight, Defendant Dodson arrived on the yard while other officers were 13 in the process of escorting the involved inmates towards the Facility A Gym. (UF 13.) Plaintiff 14 and other inmates were escorted to holding cells located in the gym, and Defendants Garcia and 15 Dodson also proceeded to the gym. (UF 14.) 16 Plaintiff concedes identifying inmates based on their identification card is important. (UF 17 15.) The inmates identified as participating in the fight were interviewed in the gym and then 18 escorted into the adjoining Facility A Program Office. (UF 16.) From the time Plaintiff was 19 detained after the fight to when he returned to his cell in Building 5, Plaintiff did not witness 20 Officer Dodson, Officer Garcia, or any officer enter his cell. (UF 17.) 21 On July 3, 2018, in reply to the response in grievance log number NKSP-A-18-02588, 22 Plaintiff wrote: “E. Dodson and E. Garcia searched my cell and destroyed my personal property 23 on 5-29-2018 in retaliation of me being [i]nvolved in the alleged incident on 5-29-2018.” 24 (UF 18.) 25 As an initial matter, there is no constitutionally protected right to be involved in a fight. 26 See, e.g., Garcia v. Nuno, No. 3:14-CV-00243, BAS (BGS), 2015 WL 13738291, at *13 (S.D. 27 Cal. Aug. 17, 2015) (inmate failed to state a retaliation claim because “fighting is not protected 28 conduct”). Thus, Plaintiff cannot base his retaliation claim on his alleged involvement in the 1 fight. 2 In his opposition, Plaintiff contends that “[o]nce [he] expressed that he would file a 3 grievance on the officers for trying to threaten and intimidate the Plaintiff into signing a ‘false” 4 (chrono), the Plaintiff’s living quarters were searched and destroyed damaging personal and legal 5 property. (ECF No. 90 at 16.) 6 Defendant Dodson declares that he entered Plaintiff’s cell on May 29, 2018, solely to 7 retrieve Plaintiff’s identification card to confirm his identity after he was detained for potential 8 involvement in the fight. (Dodson Decl. ¶ 6.) Defendant Garcia declares that he never entered 9 Plaintiff’s cell on May 29, 2018, and could not have destroyed any of his property. (Garcia Decl. 10 ¶ 8.) 11 It is undisputed that Plaintiff did not witness either Defendants Dodson or Garcia enter his 12 cell on May 29, 2018. Plaintiff concedes that identifying inmates based on their identification 13 card is important. (UF 15.) Notwithstanding Plaintiff’s contention that Dodson and Garcia 14 searched his cell because he was alleged to be involved in the fight, Plaintiff now makes the 15 conclusory claim that at some point after the fight, he “expressed” that he would file a grievance 16 and his living quarters were searched and property was destroyed. (ECF No. 90 at 16.) However, 17 Plaintiff does not state to whom he “expressed” that he would file a grievance. Thus, there is no 18 evidence that Defendants Dodson or Garcia damaged Plaintiff’s cell because he expressed a 19 desire to file a grievance after the officers already responded to the fight. Further, Plaintiff does 20 not dispute the penological purpose of needing to locate his identification card. Accordingly, the 21 record presently before the Court does not reveal genuine issues of material fact, and summary 22 judgment should be granted in favor of Defendants Dodson and Garcia on Plaintiff’s May 29, 23 2018, retaliation claim. 24 2. Defendant Garcia 25 Plaintiff alleges that on July 23, 2018, Defendant Garcia issued a RVR in retaliation for 26 exercising his right to freedom of speech. 27 Defendant Garcia argues the undisputed facts show he submitted the report because 28 Plaintiff possessed contraband. 1 Officer Maldonado declares as follows:

2 On July 23, 2018, I was assigned to and working as a correctional officer in 3 Facility A. My shift was from 6:00 a.m. to 2:00 p.m. At approximately 1 :00 p.m., while I was carrying out my responsibility to conduct random searches of inmate cells l conducted 4 a random search of cell 244 in Building 5. The cell was assigned to inmate Melvin Arrant (CDCR No. K.98602) and another inmate. To begin my search, I conducted a clothed 5 body search of the two inmates who occupied cell 244, and I instructed them to take a seat in the dayroom away from the cell. During my search of the cell, I located two cell 6 phones. Because I located two cell phones in the cell, I concluded Arrant and his cellmate 7 engaged in the rule infraction of constructive possession of a cell phone in violation of California Code of Regulations, title 15, section 3006(a). 8 Because my shift ended at 2:00 p.m., I was not able to personally complete and 9 submit the prison disciplinary Rules Violation Report I issued to Arrant for possession of a cell phone that I discovered that day. Before the end of my shift, however, I wrote the 10 circumstances of the violation memorializing the narrative regarding Arrant’s possession 11 of a cell phone.

12 Because I could not submit the Rules Violation Report before the end of my shift., Officer E. Garcia, who was working the next shift that began at 2:00 p.m. that day, 13 submitted the Rules Violation Report documenting Arrant’s possession of a cell phone on my behalf. Having Officer Garcia submit this Rules Violation Report on my behalf 14 because 1 could not was to ensure the timely and prompt reporting of the rules infraction. 15 (Maldonado Decl. ¶¶ 2-4.) 16 Defendant Garcia declares, in pertinent part, as follows: 17 On July 23, 2018, at the beginning of my shift that began at 2:00 p.m., I was directed 18 to submit a Rules Violation Report on behalf of Officer Maldonado, who I was informed could not submit the report himself because Officer Maldonado’s shift had ended at 2:00 19 p.m. and he could not continue to work past that time. CDCR policy directs correctional officers to report certain inmate rule infractions using a Rules Violation Report. California 20 Code of Regulations, title 15, section 3312(a)(3), identifies and generally outlines the 21 Rules Violation Report process. The Rules Violation Report is a computer-generated form with information inputted by staff. The report contains, among other information, the 22 charged inmate’s identifying information, violation date and time, circumstances regarding the misconduct, and reporting employee’s name and title. 23

To submit the Rules Violation Report, I copied the information located on a document that 24 Officer Maldonado prepared and that I was provided, which I understood was based on 25 what Officer Maldonado witnessed. The document stated that, approximately one hour before the end of his shift, Officer Maldonado began his search of the cell Arrant was 26 assigned to, and during this search, Officer Maldonado located two cell phones. The portion of the Rules Violation Report that I submitted and which is identified as 27 “circumstances of violation” was copied from the written summary Officer Maldonado 28 wrote on the word document I was provided. In the “circumstances of violation” section 1 of the Rules Violation Report, I wrote an introductory sentence to indicate that I was submitting the report on behalf of Officer Maldonado—“I Officer E. Garcia am writing 2 this report in lieu of Officer Maldonado due to him being unable to personally enter the report into SOMS.” The log number assigned to this report is 5343660. Attached as 3 Exhibit A is a true and correct copy of Rules Violation Report, Log No. 5343660. 4 I did not enter the cell Arrant was assigned to in Building 5 on May 29, 2018. I did not 5 speak with Arrant on May 29, 2018, July 23, 2018, or any other day about any grievances Arrant may have submitted against correctional officers nor any lawsuits Arrant may have 6 filed or anticipated filing. I submitted the July 23, 2018 Rules Violation Report, as 7 instructed, because the officer who witnessed Arrant’s rules infraction could not submit the report himself. I have never spoke to Arrant about the July 23, 2018 Rules Violation 8 Report I submitted or the events of that day, nor have I spoken to Arrant about the May 29, 2018 events besides my interactions with Arrant in the Facility A Program Office that 9 day. 10 (Garcia Decl. ¶¶ 6-8.) 11 Plaintiff does not dispute that inmates are prohibited from possessing cell phones, inmate 12 possession of cell phones poses a serious risk to prison safety and security, and on July 23, 2018, 13 non-party officer Maldonado searched Plaintiff’s cell and found a cell phone. Rather, Plaintiff 14 contends that he was never given a “ ‘cell-search receipt from officer Maldonado indicating he 15 found ‘contraband’ in the Plaintiff cell.”5 (ECF No. 90 at 16.) Further, there is no evidence that 16 officer Maldonado improperly conducted the random search on July 23, 2018, and located two 17 contraband cell phones. In addition, Plaintiff provides no evidence to contradict the fact that 18 Defendant Garcia simply memorialized officer Maldonado’s narrative documentation after the 19 random search of Plaintiff’s cell on July 23, 2018. Moreover, the mere fact that the RVR was 20 dismissed in the interest of justice does not demonstrate that it was issued with a retaliatory 21 purpose. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285-87 (1977) (holding that 22 a prisoner must establish that the protected conduct was a substantial or motivating factor for the 23 alleged retaliatory acts). Although Plaintiff previously filed a grievance on on May 30, 2018, 24 25 5 The Court notes that there is no constitutional right to be provided a cell-search receipt because a violation of Title 15, alone, does not give rise to a claim for relief. See, e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do not create private right of action); Nurre v. 26 Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 27 8, 2013) (noting that several district courts have found no implied private right of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if they occurred.”) 28 1 “[r]etaliation is not established by showing adverse activity by the defendant after the exercise of 2 protected speech; rather, plaintiff must show a nexus between the two.” See Robins v. Lamarque, 3 2011 WL 6181435 at *8 (N.D. Cal. Dec. 13, 2011) (citing Huskey v. City of San Jose, 204 F.3d 4 893, 899 (9th Cir. 2000)). Plaintiff has not offered any evidence to support his bare statements 5 that there were no cell phones in his cell. Thus, in light of the evidence submitted by Defendant 6 indicating the RVR was issued in response to non-party officer Maldonado finding contraband in 7 Plaintiff’s constructive possession, and the absence of any evidence from Plaintiff to controvert 8 these facts, Plaintiff has failed to meet his burden of demonstrating that Defendant’s action was 9 not motivated by a legitimate penological goal, i.e., the safety and security of the prison. 10 Accordingly, summary judgment should be granted in favor of Defendant Garcia. 11 B. Excessive Force-Florez 12 Plaintiff alleges that on May 18, 2019, Defendant Florez used unnecessary and excessive 13 force upon him. 14 Defendant argues Plaintiff’s claim fails as a matter of law because he reasonably and in 15 good faith attempted to escort Plaintiff to his housing unit. 16 When prison officials use excessive force against prisoners, they violate the inmates’ 17 Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298 18 F.3d 898, 903 (9th Cir. 2002). In order to establish a claim for the use of excessive force in 19 violation of the Eighth Amendment, a plaintiff must establish that prison officials applied force 20 maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore 21 discipline. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). In making this determination, the 22 court may evaluate (1) the need for application of force, (2) the relationship between that need 23 and the amount of force used, (3) the threat reasonably perceived by the responsible officials, and 24 (4) any efforts made to temper the severity of a forceful response. Id. at 7, 9-10 (“The Eighth 25 Amendment’s prohibition of cruel and unusual punishment necessarily excludes from 26 constitutional recognition de minimis uses of physical force, provided that the use of force is not 27 of a sort repugnant to the conscience of mankind.” (internal quotation marks and citations 28 omitted)). 1 Excessive force cases often turn on credibility determinations, and “[the excessive force 2 inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw 3 inferences therefrom.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc) 4 (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)); see also Avina v. U.S., 681 F.3d 5 1127, 1130 (9th Cir. 2012) (same). Therefore, “summary judgment or judgment as a matter of law 6 in excessive force cases should be granted sparingly.” Smith, 394 F.3d at 701 (quoting Santos, 7 287 F.3d at 853). The Ninth Circuit has “held repeatedly that the reasonableness of force used is 8 ordinarily a question of fact for the jury.” Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 9 (9th Cir. 1997) (citations omitted). 10 In the operative complaint, Plaintiff alleges that on May 18, 2019, officers Felix and 11 Florez appeared at Plaintiff’s cage and said, “special orders from captain Chanelo you are going 12 back to five block.” Plaintiff followed officer Florez’s order to cuff up. When Plaintiff placed 13 his hands through the cage slot to be cuffed, Florez squeezed Plaintiff’s fingers together on his 14 right hand and slammed the Plaintiff’s hand against the cage slot. Plaintiff felt the bone in his 15 right hand “pop.” As Plaintiff was being escorted back to building 5, officer Florez pinned 16 Plaintiff’s arm up like a wrestler. Plaintiff asked Florez why he was so rough with his escort even 17 though Plaintiff complied with all orders. Florez did not respond and continued with the 18 unnecessary use of force. 19 Defendant Florez declares as follows:

20 On May 18, 2019 at approximately 3:35 p.m., while on duty as a Facility A Yard 21 Officer, Facility A Sergeant Felix directed me to escort inmate Melvin Arrant (CDCR No. K98602) from a holding cell located in the Facility A Gym to Arrant’s assigned 22 housing in Building 5 on Facility A. When I encountered Arrant, he appeared to be on edge and agitated. Arrant’s tone was irritable and his voice was loud. Arrant asked why 23 he was being taken back to Building 5. I responded by telling Arrant that I was ordered to take him back to Building 5. In response, Arrant rolled his eyes and exhaled loudly, which 24 I perceived to be an expression to convey that he did not agree with being returned to 25 Building 5. To prepare for the escort, I instructed Arrant to put his hands behind his back and, while Arrant was facing away from me, place his hands through the small handcuff 26 port in the holding cell. I put Arrant in handcuffs in accordance with CDCR protocols. To my knowledge, I did not place the handcuffs unusually or overly tight on Arrant’s wrists. 27 Once the holding cell door opened and I instructed Arrant to submit to an escort, I began escorting Arrant out of the Facility A Gym towards Building 5. Sergeant Felix provided 28 1 coverage of the escort by walking a few feet behind Arrant and I.

2 The escort was a normal escort until we were more than halfway between the Facility A Gym and Building 5. Arrant asked me why I was being rough. I found this odd 3 because I was escorting Arrant in accordance with CDCR policy and I was not being 4 rough. Arrant then stated that he was suicidal. In response to Arrant stating that he was suicidal, Sergeant Felix instructed me to escort Arrant back to the Facility A Gym. During 5 my escort of Arrant, I did not engage in any actions that violated CDCR policy. I did not use force on Arrant. I did not squeeze Arrant’s fingers together or slam Arrant’s hands 6 against the holding cell. I did not raise Arrant’s arms behind Arrant’s back while he was in 7 handcuffs. (Florez Decl. ¶¶ 3-4.) 8 Defendant argues that Plaintiff was confrontational with him, and when Plaintiff 9 expressed that Florez was being rough during the escort and that he was suicidal, Florez acted 10 pursuant to policy, stopped the escort to Building 5, and returned Plaintiff to the holding cell in 11 the Facility A gym. Defendant further argues that Plaintiff did not suffer any physical injury as a 12 result of the escort. 13 The undisputed facts demonstrate that on May 18, 2019, Defendant Florez was instructed 14 by Felix to escort Plaintiff to Building 5, and Plaintiff followed Florez’s order to cuff-up for the 15 escort. (UF 29-30.) However, the parties dispute what happened during the escort to Building 5, 16 including whether any force was used. 17 According to Plaintiff, Defendant Flores squeezed Plaintiff’s right hand against the steel 18 cage slot of the cell to the point that Plaintiff felt his bone “pop” in his right hand. (ECF No. 90 19 at 13.) When Florez proceeded to escort Plaintiff to Building 5, Florez pinned Plaintiffs arms up 20 like a wrestler and Plaintiff told him he was being rough and he was in pain. (Id.) 21 On the contrary, Defendant contends he placed Plaintiff in handcuffs in accordance with 22 CDCR protocols, and to his knowledge, he did not place the handcuffs unusually or overly tight 23 on Plaintiff’s wrists. The escort was a normal escort until they were more than halfway between 24 the Facility A Gym and Building 5, and Plaintiff asked me why I was being rough, even though 25 Florez was escorting Plaintiff in accordance with CDCR policy. (Florez Decl. ¶¶ 3-4.) Florez 26 denies in any actions that violated CDCR policy. (Florez Decl. ¶ 4.) Florez contends he did not 27 use force on Plaintiff and did not squeeze Plaintiff’s fingers together or slam Plaintiff hands 28 1 against the holding cell. (Id.) Florez also denies raising Plaintiff’s arms behind Plaintiff’s back 2 while he was in handcuffs. (Id.) 3 As to the extent of the injury, Defendant argues the evidence shows that Plaintiff did not 4 suffer any physical injury as a result of the escort, and the x-rays taken three days thereafter of 5 Plaintiff’s right hand, wrist, and shoulder did not identify any precent or recent injury to Plaintiff. 6 “Injury and force ... are only imperfectly correlated, and it is the latter that ultimately counts. An 7 inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force 8 claim merely because he has the good fortune to escape without serious injury.” Wilkins v. 9 Gaddy, 559 U.S. 30, 38 (2010). As the Court has noted, “[t]he absence of serious injury is ... 10 relevant to the Eighth Amendment inquiry, but does not end it.” Hudson, 503 U.S. at 7. 11 Here, Plaintiff contends that Florez squeezed his fingers together on his right hand and 12 slammed the Plaintiff’s hand against the cage slot, and Plaintiff felt the bone in his right hand 13 “pop.” Plaintiff contends he complained to Florez of the tight handcuffs which was ignored. 14 (ECF No. 1 at 21; ECF No. 90 at 13); see, e.g., Brooks v. Ruiz, No. 2:21-cv-02010-PSG-PD, 15 2024 WL 2702916, at *4 (C.D. Cal. Apr. 22, 2024) (“[T]he Ninth Circuit has found a triable issue 16 when the handcuffs caused demonstrable injury or unnecessary pain, or when officers ignored or 17 refused requests to loosen the handcuffs once alerted that the handcuffs were too tight.”) (citing, 18 inter alia, Thompson v. Lake, 607 F. App’x 624, 625–26 (9th Cir. 2015) (denying qualified 19 immunity when tight handcuffs caused plaintiff unnecessary pain and he requested police to 20 loosen them); James v. Lee, 485 F. Supp. 3d 1241, 1255 (S.D. Cal. 2020) (same); LaLonde v. 21 County of Riverside, 204 F.3d 947, 952, 960 (9th Cir. 2000)(tight handcuffing claim should have 22 gone to the jury when officers refused plaintiff’s request to loosen painful handcuffs); Gregory v. 23 Adams, 2008 WL 486013, at *5-6 (E.D. Cal. Feb. 19, 2008) (holding that triable issue existed as 24 to whether officer who did not personally handcuff plaintiff nonetheless used excessive force by 25 ignoring plaintiff's repeated complaints of pain and refusing to loosen cuffs for over five hours)). 26 Based on the parties’ conflicting declarations as to the use of force on May 18, 2019, 27 Defendant Florez’s motion for summary judgment should be denied because the Court cannot 28 weigh the evidence or make credibility determinations. 1 C. Excessive Force and Retaliation-Tapia 2 Plaintiff alleges that on May 24, 2019, Defendant Tapia used unnecessary and excessive 3 force upon him in retaliation. 4 Defendant argues Plaintiff’s claims fails as a matter of law because he reasonably and in 5 good faith escorted Plaintiff to his housing unit and no adverse action was taken against Plaintiff 6 because of any protected conduct. 7 a. Excessive Force 8 When prison officials use excessive force against prisoners, they violate the inmates’ 9 Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298 10 F.3d at 903. In order to establish a claim for the use of excessive force in violation of the Eighth 11 Amendment, a plaintiff must establish that prison officials applied force maliciously and 12 sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. 13 Hudson, 503 U.S. at 6–7. In making this determination, the court may evaluate (1) the need for 14 application of force, (2) the relationship between that need and the amount of force used, (3) the 15 threat reasonably perceived by the responsible officials, and (4) any efforts made to temper the 16 severity of a forceful response. Id. at 7, 9-10 (“The Eighth Amendment’s prohibition of cruel and 17 unusual punishment necessarily excludes from constitutional recognition de minimis uses of 18 physical force, provided that the use of force is not of a sort repugnant to the conscience of 19 mankind.” (internal quotation marks and citations omitted)). 20 In the operative complaint, Plaintiff alleges that on May 24, 2019, Defendant Tapia told 21 Plaintiff “are you fucking stupid” and ordered him to stand up. Tapia snatched some legal 22 documents Plaintiff had in his hand and threw them on the floor. Tapia then escorted Plaintiff 23 outside the building and once outside he pushed and threw Plaintiff against the wall. Plaintiff felt 24 his knee “pop.” Tapia then slammed Plaintiff to the ground and told him “fuck your rights and 25 the Judge.” Tapia then stated, “you wanna make video complaints against my partner,” and 26 kicked Plaintiff twice in the chest. Thereafter, Tapia dragged Plaintiff back up to his feet while 27 he was cuffed behind his back and escorted him to the gym cages. Once Plaintiff was back inside 28 the gym, Tapia challenged Plaintiff to a fight. 1 Defendant Tapia declares as follows:

2 On May 24, 2019, I was assigned and working as a Facility A Security Patrol Officer. 3 My shift was from 2:00 p.m. to 10:00 p.m. About an hour after the 4:00 p.m. inmate medication distribution, I responded to Building 4 to esc01t Arrant from Building 4 to the 4 Facility A Gym. When I responded to this escort, I knew Arrant had recently been reassigned to general population in Facility A from the mental-health unit several times 5 after he claimed he could not safely remain assigned to general population. I understood this to mean that ISU could not validate Arrant’s safety claims. The correctional officers 6 assigned to Building 4 informed me that they needed assistance in escorting Arrant, who 7 informed them that he was feeling suicidal.

8 Upon arriving at Building 4, I encountered Arrant in the building's dayroom area. I was a few feet in front of the short hallway that exited onto the exercise yard. Sergeant 9 Grimsley, the sergeant who also responded to the request to escort Arrant, instructed me to restrain Arrant with handcuffs and escort Arrant to the Facility A Gym where Arrant 10 could be evaluated by medical personnel based on his suicide claims. Placing Arrant in 11 handcuffs complied with CDCR policy on how to safely escort an inmate, such as Arrant, who claims to be suicidal. It is an effort to mitigate their ability to harm themselves or 12 others. After directing Arrant to submit to handcuffs and an escort, I restrained Arrant in handcuffs in compliance with CDCR training and protocols. To my knowledge, I did not 13 place the handcuffs unusually or overly tight on Arrant’s wrists.

14 After restraining Arrant in handcuffs, I escorted Arrant out of Building 4, through the 15 short hallway that exited onto the exercise yard and across the exercise yard to the Facility A Gym. Officer Hurley, who also responded to Building 4 in response to the request to 16 escort Arrant, assisted me by walking a few feet behind and to the side of Arrant and I. Arrant walked from Building 4 to the Facility A Gym with my hand placed on his forearm 17 in compliance with CDCR protocols when escorting an inmate who is restrained in handcuffs. I did not push or throw Arrant against any walls or onto the ground. I did not 18 trip, stomp, hit, or kick Arrant. 19 I escorted Arrant into the Facility A Gym, where I helped Officer Hurley place Arrant 20 in a holding cell. After helping place Arrant in the holding cell, I recovered my assigned handcuffs from Arrant. When I took possession of my assigned handcuffs, I walked 21 towards the Facility A Gym exit, which was a few yards away from the holding cell where Arrant was located. While I was walking away from the holding cell where Arrant was 22 located, I heard what sounded like Arrant repeatedly strike the holding cell with his body. 23 (Tapia Decl. ¶¶ 3-6.) 24 Defendant Tapia argues when he encountered Plaintiff he was angry and upset. During 25 the escort of Plaintiff to the gym, Plaintiff was yelling and spoke over Tapia. At the end of the 26 escort, Plaintiff was still angry and upset, and repeatedly struck the holding cell with his body. 27 Defendant properly placed Plaintiff in a holding cell to be examined by medical professionals 28 1 after he claimed to be suicidal. Defendant further argues that Plaintiff did not suffer any physical 2 injury as result of the escort on May 24, 2019. 3 It is undisputed that on May 24, 2019, at around 5:00 p.m., Defendant Tapia responded to 4 Building 4 to escort Plaintiff to the Facility A Gym. (UF 45.) At that time, Defendant Tapia was 5 assigned to and working a shift as a Facility A Security Patrol Officer. (UF46.) When Defendant 6 Tapia responded to this escort, he knew Plaintiff had recently been reassigned to general 7 population from the mental-health unit several times after Plaintiff had claimed he could not 8 safely remain in general population. (UF 47.) The officers assigned to Building 4 informed 9 Defendant Tapia that they needed assistance in escorting Plaintiff. (UF 50.) The officers 10 assigned to Building 4 informed Sergeant Tapia that Plaintiff told them that he was suicidal. (UF 11 51.) Sergeant Tapia encountered Plaintiff in the dayroom of Building 4. (UF 52.) However, the 12 parties dispute what happened during the escort to the Facility A Gym, including whether any 13 force was used. 14 According to Plaintiff, on May 24, 2019, Defendant Tapia “ran” him into the stone 15 building because he made complaints. (ECF No. 90 at 19-20.) Plaintiff felt his right and knee 16 bone “pop.” (Id. at 20.) Tapia continued to shout at Plaintiff while he slammed him to the 17 ground and kicked him “twice” in the chest while stating “fuck the Judge and your rights.” (Id.) 18 Defendant contests that during his interaction with Plaintiff on May 24, 2019, he did not 19 take any legal documents from Plaintiff or throw any legal documents on the ground. (Tapia Decl. 20 ¶ 7.) He also did not make any statement to Plaintiff regarding any prior grievances Plaintiff may 21 have submitted, any complaints Plaintiff may have submitted against other correctional officers, 22 or any lawsuits Plaintiff may have filed or planned to file. (Id.) Nor did Defendant challenge 23 Plaintiff, and he did not use force against Plaintiff. (Id.) 24 With regard to the extent of physical injury, shortly after the incident nurse Robinson 25 observed an abrasion to Plaintiff’s right knee. (Robinson Decl. ¶ 7.) 26 Based upon the foregoing, Defendant Tapia’s motion for summary judgment as to the 27 merits of the excessive force claim should be denied because triable issues of fact exist. 28 /// 1 b. Retaliation 2 “Prisoners have a First Amendment right to file grievances against prison officials and to 3 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d at 1114 (citing Brodheim v. 4 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First 5 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 6 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 7 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 8 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d at 567-68. 9 To state a cognizable retaliation claim, Plaintiff must establish a nexus between the retaliatory act 10 and the protected activity. Grenning v. Klemme, 34 F.Supp.3d at 1153. 11 Defendant argues that there is no evidence that adverse action was taken against Plaintiff 12 because he engaged in a protected activity, Defendant could not have chilled any protected 13 conduct, and escorting Plaintiff to the Facility A Gym after he claimed to be suicidal served a 14 legitimate penological interest. 15 (1) Adverse Action 16 Plaintiff claims that he was subjected to the use of excessive force by Defendant Tapia 17 because he exercised his rights under the First Amendment to file complaints against fellow 18 officers. Indeed, Plaintiff alleges that prior to the use of force, Defendant Tapia told Plaintiff “are 19 you fucking stupid” and ordered him to stand up. Tapia snatched some legal documents Plaintiff 20 had in his hand and threw them on the floor. Tapia then escorted Plaintiff outside the building 21 and once outside he pushed and threw Plaintiff against the wall. Plaintiff felt his knee “pop.” 22 Tapia then slammed Plaintiff to the ground and told him “fuck your rights and the Judge.” Tapia 23 then stated, “you wanna make video complaints against my partner.” (ECF No. 1 at 22; ECF No. 24 90 at 10-11, 19-20.) The retaliatory conduct is whether force was necessary during the escort, not 25 whether Plaintiff should have been escorted to the Facility A Gym. Plaintiff has sufficiently 26 described adverse action allegedly taken against him by Defendant Tapia, therefore satisfying this 27 requirement of a retaliation claim. 28 /// 1 (2) Chilling Effect of Future First Amendment Activities 2 Plaintiff must allege that the “official’s acts would chill or silence a person of ordinary 3 firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 (internal quotation 4 marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may still state a 5 claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is “more than 6 minimal,” Rhodes, 408 F.3d at 568 n.11. 7 Contrary to Defendant’s contention, as stated above, Defendant Tapia made several 8 comments prior to the use of force regarding the filing of complaints by Plaintiff and was 9 thereafter subjected to the use of excessive force. A reasonable person in Plaintiff’s position 10 would certainly be chilled from filing future complaints under these circumstances. 11 (3) Legitimate Penological Interest 12 Plaintiff must allege “that the prison authorities’ retaliatory action did not advance 13 legitimate goals of the correctional institution....” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 14 1985). 15 Defendant argues that by handcuffing and escorting Plaintiff out of Building 4 to a secure 16 holding cell in the gym to be examined by medical professional served a legitimate penological 17 interest to ensure Plaintiff’s safety and the safety of others. 18 However, Plaintiff’s evidence shows that Defendant Tapia’s retaliatory actions did not 19 advance a legitimate penological interest. Tapia’s alleged statements regarding Plaintiff’s filing 20 of complaints and subsequent use of excessive force during the escort did not serve to advance a 21 legitimate penological interest. Defendant’s argument overlooks the disputed facts as to whether 22 excessive force was used on May 24, 2019, during the escort. 23 Based upon the foregoing, Defendant Tapia’s motion for summary judgment as to the 24 merits of the retaliation claim should also be denied because triable issues of fact exist. 25 D. Qualified Immunity 26 The defense of qualified immunity protects “government officials ... from liability for civil 27 damages insofar as their conduct does not violate clearly established statutory or constitutional 28 rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 1 (1982). The rule of “qualified immunity protects ‘all but the plainly incompetent or those who 2 knowingly violate the law.’ ” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. 3 Briggs, 475 U.S. 335, 341 (1986)). Defendants can have a reasonable, but mistaken, belief about 4 the facts or about what the law requires in any given situation. Id. at 205. A court considering a 5 claim of qualified immunity must determine whether the plaintiff has alleged the deprivation of 6 an actual constitutional right and whether such a right was clearly established such that it would 7 be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See 8 Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part test that 9 required determining a deprivation first and then deciding whether such right was clearly 10 established, as required by Saucier). The Court may exercise its discretion in deciding which 11 prong to address first, in light of the particular circumstances of each case. Pearson, 555 U.S. at 12 236. The Court must view the evidence in the light most favorable to the plaintiff. See Martinez 13 v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 14 Here, the Court finds Defendants Florez and Tapia are not entitled to qualified immunity. 15 Defendants contend they are entitled to qualified immunity based on their version of the facts. 16 However, as discussed above, the Court finds that there are genuine disputes of material facts. 17 When analyzing Defendants’ claim to qualified immunity, the Court must view the facts in the 18 light most favorable to plaintiff. Saucier, 533 U.S. at 201. 19 When viewing the facts in the light most favorable to Plaintiff, during the escort on May 20 18, 2019, Defendant Florez used excessive force by squeezing Plaintiff’s fingers together on his 21 right hand and slamming Plaintiff’s hand against the cage slot, and Plaintiff felt the bone in his 22 right hand “pop.” Plaintiff contends he complained to Florez of the tight handcuffs which was 23 ignored. Whereas Defendant Florez denies using any force on May 18, 2019. Plaintiff further 24 alleges that on May 24, 2019, in retaliation for filing complaints and/or grievances Defendant 25 Tapia “ran” him into the stone building because he made complaints. (ECF No. 90 at 19-20.) 26 Plaintiff felt his right and knee bone “pop.” (Id. at 20.) Tapia continued to shout at Plaintiff 27 while he slammed him to the ground and kicked him “twice” in the chest while stating “fuck the 28 Judge and your rights.” (Id.) Defendant Tapia also denies using any force on May 24, 2019. 1 Plaintiff has clearly alleged the deprivation of his actual constitutional rights, i.e., an 2 Eighth Amendment right to be protected from excessive force by correctional staff that is not 3 applied in a good faith effort to restore discipline, as perceived by a reasonable officer, and a First 4 Amendment right to not be retaliated against for filing complaints and/or grievances. 5 Accordingly, Defendants’ actions, as alleged by Plaintiff, were violations of Plaintiff’s Eighth and 6 First Amendment rights and Plaintiff’s rights were clearly established in 2019. See, e.g., Whitley 7 v. Albers, 475 U.S. 312, 327 (1986) (unnecessary and wanton infliction of pain against prisoner 8 violates Eighth Amendment); Hudson, 503 U.S. at 6-7 (1992) (prisoners have an Eighth 9 Amendment right to be protected from the use of excessive force); Shepard v. Quillen, 840 F.3d 10 686, 688, 693 (9th Cir. 2016) (the Ninth Circuit has “long recognized that a correctional officer 11 may not retaliate against a prisoner for exercising his First Amendment right to report staff 12 misconduct” and “[a] prisoner’s general right against retaliatory punishment [i]s clearly 13 established.”). The Court therefore finds that Defendants Florez and Tapia are not entitled to 14 qualified immunity on Plaintiff’s claims. 15 E. Severance of Claims 16 Defendants previously filed a Motion for Misjoinder of Parties and Severance of Claims 17 (ECF No. 69), which the Court denied without prejudice after finding the motion was premature. 18 (ECF No. 75 at 5.) The Court stated that if Defendants file a motion for summary judgment, “they 19 may therein renew the request for severance.” (Id.) In their motion for summary judgment, 20 Defendants renew their motion to sever Plaintiff’s claims. Defendants’ request should be granted. 21 The court may also sever any claim against a party.” Fed. R. Civ. P. 21. A district court 22 has “broad discretion ... to make a decision granting severance....” Coleman v. Quaker Oats Co., 23 232 F.3d 1271, 1297 (9th Cir. 2000). In determining whether to sever a claim under Rule 21, the 24 court may consider the following factors: “(1) whether the claims arise out of the same 25 transaction or occurrence; (2) whether the claims present some common questions of law or fact; 26 (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether 27 prejudice would be avoided if severance were granted; and (5) whether different witnesses and 28 documentary proof are required for the separate claims.” Broadcom Corp. v. Sony Corp., No. 16- 1 1052 JVS (JCGx), 2016 WL 9108039, at *2 (C.D. Cal. Dec. 20, 2016) (citations omitted). 2 Here, as illustrated above, the two remaining excessive force claims against Defendants 3 Florez and Tapia are separate and distinct which warrants severance as Defendants would be 4 prejudiced to have to defend both claims in one trial. Accordingly, the excessive force (and 5 retaliation) claims against Defendants Florez and Tapia should be heard in separate trials. 6 IV. 7 RECOMMENDATIONS 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. Defendants’ motion for summary judgment be granted in part and denied in part as 10 follows: 11 a. Defendants Dodson and Garcia motion for summary judgment on Plaintiff’s May 12 29, 2018 retaliation claim be granted; 13 b. Defendant Garcia’s motion for summary judgment on Plaintiff’s retaliation claim 14 be granted; Granted as to Plaintiff’s retaliation claim against Defendant Garcia 15 c. Defendant Florez’s motion for summary judgment to Plaintiff’s excessive force 16 claim be denied; 17 d. Defendant Tapia’s motion for summary judgment as to Plaintiff’s excessive force 18 and retaliation claims be denied; 19 e. Defendants Florez and Tapia motion for qualified immunity be denied; and 20 f. The excessive force (and retaliation) claims against Defendants Florez and Tapia 21 be heard in separate trials. 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 24 one (21) days after being served with these Findings and Recommendations, the parties may file 25 written objections with the Court, limited to 15 pages in length, including exhibits. The 26 document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” The parties are advised that failure to file objections within the specified 28 time may result in the waiver of rights on appeal. W ilkerson v. Wheeler, 772 F.3d 834, 838-39 1 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 rs so onpexeD. DAM Le 4 | Dated: _ November 25, 2024 ; STANLEY A. BOONE 5 United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32