THERON KENNETH HOLSTON, No. 2:20-CV-2466-DJC-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS Defendant. Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion for summary judgment. See ECF No. 55. Plaintiff has filed a declaration in opposition, an opposition brief, and a supplemental opposition brief. See ECF Nos. 63, 65, and 79. Defendant has filed a reply. See ECF No. 82. The Federal Rules of Civil Procedure provide for summary judgment or summary adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the moving party
. . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.
Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. / / / / / / / / / In resolving the summary judgment motion, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251. This action proceeds on Plaintiff’s original complaint. See ECF No. 1. Plaintiff initially named two defendants: (1) Brown, an officer with the Placerville Police Department; and (2) Garcia, a deputy with the El Dorado County Sheriff’s Office. See id. at 2. Defendant Brown was later voluntarily dismissed from the case. See ECF Nos. 24 and 25. Plaintiff’s remaining claim against Garcia alleges excessive force by a law enforcement officer in violation of the Fourteenth Amendment. See ECF No. 1, pg. 6. Plaintiff claims he was arrested on July 28, 2020, by Brown for failing to register as a sex offender per Cal. Penal Code § 290. See id. at 3. Plaintiff was then transported by Brown to the El Dorado County Jail. See id. at 6. Once at the jail, Plaintiff claims he was removed from the police car by force while handcuffed behind his back. See id. Plaintiff claims that, as Garcia and another officer were walking Plaintiff from the sally port, he “used profanities against no one in particular.” Id. Plaintiff alleges that, once inside the building, Garcia momentarily released Plaintiff’s arm and struck Plaintiff with a closed left fist to Plaintiff’s left eye. See id. at 6-7. Plaintiff alleges that this broke his prescription glasses and caused bruising on Plaintiff’s left eye and cheek area. See id. at 7. Plaintiff claims that Garcia then tackled Plaintiff to the ground and handcuffed him behind his back. See id. Plaintiff then walked approximately fifteen feet to face a wall, where Garcia instructed another officer to unlock Plaintiff’s handcuffs. See id. Once the handcuffs were removed from Plaintiff’s left wrist, Plaintiff claims Garcia forcefully twisted Plaintiff’s left arm behind his back while dragging him to the ground. See id. at 7-8. Plaintiff alleges that, once on the ground, Garcia struck Plaintiff with closed fists about Plaintiff’s head and torso while other officers physically restrained Plaintiff. See id. at 8. Plaintiff claims that Garcia used this force as punishment for Plaintiff’s use of profanities. See id. at 8-9. Plaintiff seeks damages for his pain, suffering, and humiliation as well as damages incurred from breaking his prescription glasses. See id. at 6. Plaintiff further seeks punitive damages for the alleged excessive force. See id. at 9. A. Defendant’s Motion Defendant’s motion for summary judgment is supported by the following: (1) a separate statement of undisputed facts, ECF No. 55-1; (2) a declaration by Garcia, ECF No. 55-3; (3) a declaration by Jacob J. Graham, ECF No. 55-4; and (4) a declaration by Jonathon Eslick, ECF No. 55-5. Defendant asserts the following facts are undisputed:
1. On July 28, 2020, Plaintiff Theron Holston was arrested and taken to El Dorado County Jail to serve a period of flash incarceration pursuant to violating the conditions of his parole.
2. Upon entry to the jail at 3:00 p.m., Holston began cursing and making threats that he was going to fight the officers. 3. Officer Garcia was in control of Holston’s right arm while another jail officer controlled Holston’s left arm.
4. Holston’s hands were handcuffed in the front.
5. Within seconds of entering the jail’s booking area, Holston tensed up and pulled away from Officer Garcia and the other jail officer while cursing at them. 6. Officer Garcia perceived Holston’s agitated state and ordered Holston to stop resisting. 7. Holston relaxed, but after a few seconds tensed up and attempted to bring his hands up to his chest.
8. At this point, Officer Garcia was unable to keep Holston’s hands down in front of him nor place him in a more secure control hold so he released his grip of Holston’s right arm and did a hair-pull takedown, which consisted of Officer Garcia grabbing the back of Holston’s head and pulling him by his hair down to the floor.
9. Officer Garcia’s sole intent in using this takedown was to maintain order and security. 10. Officer Garcia did not punch Holston in the eye, as evidence by Holston’s glasses, which remained on his face undisturbed.
11. Once on the floor, Holston continued resisting by turning his lower body and legs. 12. Officer Garcia repeatedly ordered Holston to stop resisting while they were on the ground.
13. After about a minute, Holston relaxed, and Officer Garcia and the other jail officer helped Holston up to a standing position. 14. At this point, additional officers had already responded to the intake area to assist.
15. Before continuing the booking process, Officer Garcia placed Holston against the intake wall, so that he could search Holston and switch his handcuffs to behind his back.
16. Officer Garcia advised Holston of his intention to switch his handcuffs and ordered Holston to resist while he made this change. 17. Before pat searching Holston, Officer Garcia asked Holston if he had anything in his pickets that could stick or poke him to which Holston stated, “I hope so.” 18. Holston continued cursing and stating he was going to fight Officer Garcia.
19. Officer Garcia then conducted a pat search of Holston and found no drugs, weapons, or needles. 20. After searching Holston, Officer Garcia proceeded to remove Holston’s cuffs so he could make the transition to behind the back.
21. Before doing so, Holston was again ordered not to resist.
22. However, as soon as his cuffs were removed, Holston again attempted to pull away from the officers’ grip of him and pushed his left elbow towards one of the officer’s head. 23. Officer Garcia and several other officers perceived Holston’s resistance and immediately responded by taking Holston down onto the intake floor.
24. The officers then spent approximately two minutes trying to handcuff Holston behind the back while on the ground. 25. At no point did any officer strike or kick Holston while he was on the ground.
26. Officer Garcia eventually handcuffed Holston behind the back and then assisted him to his feet and sat him in an intake booth. 27. Holston’s intake process was then completed without further incident.
28. LVN Christ Wise was on standby in the booking area during the incident. 29. After Holston was booked at approximately 3:23 p.m., LVN Wise evaluated Holston.
30. During the examination, LVN Wise prepared a Receiving Screening Report. 31. As reflected in the Screening Report, Holston told LVN Wise he did not need any medical treatment and denied having injuries.
32. LVN Wise’s report notes red marks and small abrasions to Holston’s face. 33. There is, however, no mention of any physical injury that might be associated with being repeatedly struck in the head and torso while on the ground. 34. Holston’s operative complaint alleges Officer Garcia used excessive force against him in violation of the Fourteenth Amendment during the July 28, 2020, incident. 35. Holston alleges two separate acts of excessive force occurred during the July 28, 2020, incident: (1) Officer Garcia threw his left closed fist with force into his left eye while he was handcuffed behind the back, causing his glasses to break; and (2) Officer Garcia proceeded to drag him to the ground and strike him multiple time with a closed fist about his head and torso.
36. The only physical injury Holston claims to have suffered from the incident was bruising to his left eye and cheek area. ECF No. 55-1, pgs. 1-6 (Defendant's separate statement of undisputed facts). / / / / / / B. Plaintiff’s Opposition Plaintiff filed a declaration in opposition to the motion, a statement of disputed facts, and an opposition brief. See ECF Nos. 63-65. Plaintiff claims that, at the time of his filings, he did not have access to Defendant’s motion for summary judgment and was unaware of the facts alleged in the motion. See ECF No. 65, pg. 2. The Court directed that Defendant re-serve the motion for summary judgment and granted Plaintiff additional time to file a supplemental opposition. See ECF No. 74. Plaintiff then filed a supplemental opposition to the motion, which addresses the facts alleged in Defendant’s motion. See ECF No. 79. Facts Admitted In Plaintiff’s supplemental opposition, Plaintiff largely admits to facts surrounding the two takedowns. See ECF No. 79. Those admitted facts are as follows:
1. Defendant had control of Plaintiff’s right arm while being escorted into the jail and Plaintiff was handcuffed in the front, although he had initially stated that he was handcuffed from behind.
2. After the first takedown, Defendant and another officer helped Plaintiff to his feet, other officers had responded to the incident, and Plaintiff was placed against a wall to be searched and to switch his handcuffs to behind his back. 3. Defendant conducted a pat search of Plaintiff and found no drugs, weapons, or needles.
4. Defendant then took off Plaintiff’s handcuffs, but Plaintiff claims he was unaware of Defendant’s intent to transition them to behind his back.
5. After the second takedown, Defendant handcuffed Plaintiff behind his back, helped him to his feet, and completed the intake process without further incident.
6. After Plaintiff was booked, Plaintiff was evaluated by LVN Wise, who prepared a Receiving Screening Report. 7. The report noted red marks and small abrasions on Plaintiff’s face, although Plaintiff denies that this was the extent of his injuries. 8. Plaintiff admits that, in his initial complaint, he alleged excessive force in violation of the Fourteenth Amendment based on the two separate takedown and the blows to the head and torso associated with each takedown.
/ / / 9. Although Plaintiff initially described the blow in the initial takedown as hitting the left side of his face, he now claims that the blow hit the right side of his face.
ECF No. 79, pgs. 3-7.
Facts Denied Plaintiff denies the remainder of the facts outlined in Defendant’s separate statement. These denials fall into four categories: (1) the initial cause of Plaintiff’s arrest; (2) Plaintiff’s words and actions; (3) Defendant’s words and actions; and (4) Plaintiff’s interaction with LVN Wise. See id. In support of these denials, Plaintiff attaches his own declaration to his supplemental opposition. See ECF No. 79-1. Regarding the initial cause of Plaintiff’s arrest, Plaintiff claims that he was arrested for failing to register as a sex offender per Cal. Penal Code § 290. See id. at 6. This contradicts Defendant’s claim that Plaintiff was incarcerated for violation of his parole. Regarding Plaintiff’s words and actions, Plaintiff claims that he at no point threatened to fight any of the officers. See id. at 7. Plaintiff instead claims that he used the phrases “fuck you punk;” “fuck you nigger;” and “fuck you bitch” to express his disrespect. Id. This contradicts Defendant’s claims that Plaintiff had threatened to fight the officers at multiple times throughout their encounter. Plaintiff further claims that he at no point resisted after he exited the police vehicle and entered the sally port, either by raising his arms or attempting to pull away from the officers. See id. at 6-9. Plaintiff does admit that he tensed up at one point as he believed that he was going to be assaulted but argues that this tensing was not resisting. See id. at 7-8. These claims contradict Defendant’s claims that Plaintiff resisted the officers at multiple times throughout the encounter. Regarding Defendant’s words and actions, Plaintiff claims that Defendant at no point ordered Plaintiff to not resist. See id. at 8. This contradicts Defendant’s claims that Defendant ordered Plaintiff to not resist multiple times throughout their encounter. Plaintiff further claims that Defendant punched him on the right side of his face and tackled him to the ground. See id. at 1-2. This contradicts Defendant’s claim that he performed a hair-pull takedown and did not punch Plaintiff. Plaintiff also claims that, when Defendant brought him to the ground the second time, Defendant began striking him on the head and torso. See id. at 4. This contradicts Defendant’s claim that he did not punch or kick Plaintiff and was only trying to handcuff Plaintiff behind his back. Finally, regarding Plaintiff’s interaction with LVN Wise, Plaintiff claims that he did not tell LVN Wise that he did not need medical attention. See id. at 9. Plaintiff also claims that the red marks and abrasions on Plaintiff’s face as noted in LVN Wise’s report are indicative of blows to the head and torso. This contradicts Defendant’s claims that there was no mention of physical injury associated with being repeatedly struck in the head and torso while on the ground. Plaintiff further claims that the red marks and abrasions do not capture the full extent of his injuries. See id. at 6. Plaintiff claims that, in addition to the red marks and abrasions, Plaintiff also suffered permanent injury to his shoulder caused by Defendant’s actions during the second takedown. See ECF No. 79-1, pg. 4-5. This contradicts Defendant’s claim that the only injury Plaintiff claimed in his original complaint was bruising to his left eye and cheek area. Plaintiff’s addendum to his supplemental opposition argues that, at the time of the encounter, Plaintiff was a pre-trial detainee, arrested for violation of Cal. Penal Code §§ 69 and 290.018. See ECF No. 90. As such, Plaintiff argues that this case is properly analyzed under the Fourteenth Amendment reasonableness standard. See id. To support this claim, Plaintiff has attached a copy of the declaration and determination prepared by Officer A. Brown regarding his arrest prior to the encounter. See id. at 6. Defendant argues that summary judgment is appropriate because: (1) Plaintiff’s excessive force claim is properly analyzed under the Eighth Amendment, not the Fourteenth Amendment and, under the Eighth Amendment standard, the force used by Defendant was not applied maliciously and sadistically; and (2) Defendant is entitled to qualified immunity. See ECF No. 55. In Defendant’s reply, as a response to Plaintiff argument that his claim must be analyzed under the Fourteenth Amendment’s reasonableness standard, Defendant argues that, regardless of the standard applied, the force used was reasonable and not applied sadistically or maliciously. See ECF No. 82. For the reasons discussed below, the Court finds Defendant’s arguments unpersuasive under either the Eighth Amendment standard or the Fourteenth Amendment standard. The Court also finds that Defendant is not entitled to qualified immunity at this time. A. Plaintiff's Excessive Force Claim This case proceeds on Plaintiff's excessive force claim against Defendant Garcia. Because the parties disagree as to whether the claim should be analyzed under the Fourteenth Amendment or Eighth Amendment, the Court will consider the merits of Plaintiff's claim under both standards. 1. Eighth Amendment The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or omission must be so serious such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable mind.” See id. When prison officials stand accused of using excessive force, the core judicial inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, is applied to excessive force claims because prison officials generally do not have time to reflect on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 U.S. at 320-21. In determining whether force was excessive, the court considers the following factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship between the need for force and the amount of force used; (4) the nature of the threat reasonably perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, because the use of force relates to the prison’s legitimate penological interest in maintaining security and order, the court must be deferential to the conduct of prison officials. See Whitley, 475 U.S. at 321-22. In the pending motion for summary judgment, Defendant argues that the force used by Defendant was not applied maliciously and sadistically. See ECF No. 55, pg. 7. More specifically, Defendant argues: (1) Defendant did not punch Plaintiff in the eye or strike him on the head and torso, and that video recordings reflect that Defendant only grabbed the back of Plaintiff’s head and attempt to handcuff him; (2) Plaintiff did not suffer any injury during the second takedown apart from red marks and small abrasions on his face, as reported by LVN Wise; and (3) even if Plaintiff’s allegations are true, the force applied does not show sadistic or malicious intent. See id. at 8-10. Defendant asserts that the undisputed evidence shows that he did not punch Plaintiff in the eye or strike him on the head and torso. The Court disagrees and finds there is a genuine issue of material fact. Plaintiff has stated both in his original verified complaint, which the Court can consider as Plaintiff’s declaration, and in his opposition declaration that Defendant did punch him in the face and struck him on the head and torso. The surveillance video offered by the Defendant does not provide evidence sufficient to dispute Plaintiff’s claim. A reasonable jury could interpret the video evidence in any number of ways and ultimately decide that the video supports Plaintiff’s version of events. As to Defendant’s claim that Plaintiff did not suffer any injuries apart from red marks and small abrasions on his face, the Court again finds there is a genuine issue of material fact. Plaintiff claims that, in addition to the red marks and abrasions, he also experienced bruising around his eye and permanent damage to his shoulder. Defendant argues in the reply that Plaintiff’s “conclusory lay opinion, however, cannot replace ‘competent medical evidence’ in summary judgment briefing.” ECF No. 82, pg. 4 (citing Calloway v. Kelley, 2015 U.S. Dist. LEXIS 10420 at *54 (E.D. Cal. Aug. 6, 2015)). Even taking this to be true, Defendant’s argument is not persuasive. There is no indication in LVN Wise’s report that she assessed Plaintiff’s shoulder or his torso for bruising that would have been concealed by his shirt. As such, a reasonable jury could find that Plaintiff’s claims of injury are true. Curiously, despite Defendant’s argument that Plaintiff’s declaration cannot overcome “competent medical evidence,” Defendant provides no such evidence, for example by way of a declaration or deposition testimony from a medical doctor, to support the current motion. Regarding Defendant’s argument that, even if Plaintiff’s claims are true, the force applied does not rise to the level of being sadistic and malicious, the Court finds the argument unpersuasive. Defendant argues that there is no evidence to support a claim that Defendant applied force maliciously and sadistically. See ECF No. 55, pg. 10. More specifically, Defendant argues that: (1) Plaintiff’s threats to fight officers and attempts to resist show an undisputed need for force; (2) Plaintiff’s claim of bruising constitutes minor injury; (3) Plaintiff’s minor injuries show that the force used was proportionate to the need for force; (4) Defendant reasonably perceived a threat based on Plaintiff’s threat to fight officers; and (5) Defendant attempted to temper the force used against Plaintiff by issuing several orders and warning to stop resisting. See id. at 8-10. Defendant relies on the facts outlined in his statement of undisputed material facts to support these claims. See ECF No. 55-1. / / / / / / / / / As to Defendant’s claim that Plaintiff suffered only minor injuries, this claim is disputed, as noted above, and may include permanent damage to Plaintiff’s shoulder. As to Defendant’s claims that Plaintiff threatened to fight officers and that Defendant issued several orders and warnings to stop resisting, Plaintiff denies both claims in his supplemental opposition. Although Plaintiff does admit that he directed obscenities at the officer, he denies ever threatening to fight the officers. Because the surveillance video provided with Defendant’s motion does not contain audio, the words exchanged throughout the encounter cannot be conclusively ascertained at this time on the current record. Given the competing versions of events, the Court finds that there is a genuine issue of material fact as to the words used by Plaintiff. Finally, as to Defendant’s claim that Plaintiff resisted throughout the encounter, Plaintiff claims in his supplemental opposition that he did not resist and tensed up only in anticipation of harm. Again, because the surveillance video is susceptible to various interpretations, it does not provide evidence sufficient to conclusively disprove Plaintiff’s claim. The Court thus finds that there is also a genuine issue of material fact regarding Plaintiff’s resistance, or lack thereof, during the encounter. 2. Fourteenth Amendment The Fourteenth Amendment’s Due Process Clause applies to excessive force claims brought by pretrial detainees. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). “[T]he Fourteenth Amendment is more protective than the Eighth Amendment ‘because the Fourteenth Amendment prohibits all punishment of pretrial detainees, while the Eighth Amendment only prevents the imposition of cruel and unusual punishment of convicted prisoners.’” Vazquez v. County of Kern, 949 F.3d 1153, 1163–64 (9th Cir. 2020) (quoting Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004)). “[P]retrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” Id. Unlike prisoners, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 396–97. This assessment requires a court or factfinder to “make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time . . .” Id. at 397. In assessing the reasonableness or unreasonableness of the force used, courts may consider:
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.
Id. In Defendant’s reply to Plaintiff’s opposition, Defendant argues that, under the Fourteenth Amendment standard for excessive force, the force used by Defendant was reasonable.1 See ECF No. 82, pgs. 3-5. As noted above, there are genuine issues of material fact which must be decided by a jury. On the current record, a reasonable jury could decide that Defendant applied force in an unreasonable manner given the circumstances. As such, the Court finds that Defendant’s argument is also unpersuasive under the Fourteenth Amendment. B. Qualified Immunity Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether the right was clearly established. See id. This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 1 It appears that Defendant erroneously argued the case under the Eighth Amendment in his original motion for summary judgment and now includes a Fourteenth Amendment analysis in the reply brief after Plaintiff objected in his opposition to application of the Eighth Amendment standard. official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). Thus, the final step in the analysis is to determine whether a reasonable officer in similar circumstances would have thought his conduct violated the alleged right. See id. at 205. When identifying the right allegedly violated, the court must define the right more narrowly than the constitutional provision guaranteeing the right, but more broadly than the factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand [that] what [the official] is doing violates the right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court concludes that a right was clearly established, an officer is not entitled to qualified immunity because a reasonably competent public official is charged with knowing the law governing his conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff has alleged a violation of a clearly established right, the government official is entitled to qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Saucier, 533 U.S. at 205. The first factors in the qualified immunity analysis involve purely legal questions. See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal determination based on a prior factual finding as to the reasonableness of the government official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). In Defendant’s motion for summary judgment, Defendant argues that, even if Defendant’s actions are considered excessive force, he is still entitled to qualified immunity. Defendant argues that: (1) Defendant did not violate Plaintiff’s constitutional right to be free from cruel and unusual punishment as the force used was reasonable; and (2) a reasonable officer in Defendant’s position would not have believed Defendant’s actions were unconstitutional. See ECF No. 55, pg. 11. The Court finds that Defendant’s arguments are not persuasive. Viewing the evidence in the light most favorable to Plaintiff, Defendant is not entitled to qualified immunity. As noted above, there are genuine issues of material fact as to whether Defendant violated Plaintiff’s constitutional rights, either under the Eighth Amendment or Fourteenth Amendment. Viewing the evidence in the light most favorable to Plaintiff, a jury could conclude that Plaintiff was not resisting or threatening to fight officers, Defendant at no point ordered or warned Plaintiff not to resist, Defendant struck Plaintiff multiple times to the head and torso, Defendant twisted Plaintiff’s arm to the point of permanent injury, and Plaintiff suffered bruising to his face from Defendant’s punch as well as permanent injury to his shoulder. Thus, a reasonable jury could find that Defendant violated Plaintiff’s constitutional rights, whether analyzed under the Eighth Amendment or Fourteenth Amendment. Additionally, on the current record, a jury could find that a reasonable officer would have been aware that their actions violated Plaintiff’s rights. Given the factual determinations which remain to be made, the Court cannot at this point find that Defendant is entitled to qualified immunity as a matter of law. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / Based on the foregoing, the undersigned recommends that Defendant’s motion for summary judgment, ECF No 55, be DENIED. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 19, 2025 Ss..c0_, DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 17