Ricardo Wheatley v. D. Dominguez, et al.

• Court: District Court, E.D. California
• Decided: September 8, 2025
• Docket: 1:20-cv-00481
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO WHEATLEY, Case No.: 1:20-cv-00481-CDB 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. (Doc. 46) 14 D. DOMINGUEZ, et al.,

15 Defendants. 16 17 Plaintiff Ricardo Wheatley is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. section 1983. This action proceeds on Plaintiff’s Eighth Amendment 19 excessive force claims against Defendants Dominguez and Flores, Eighth Amendment failure to 20 intervene claims against Dominguez, Denney, and Hernandez, and Eighth Amendment medical 21 indifference claims against Dominguez, Denney, Flores, and Hernandez. 22 I. INTRODUCTION1 23 The Court issued its Discovery and Scheduling Order on February 20, 2024. (Doc. 36.) 24 On February 28, 2025, Defendants filed a motion for summary judgment. (Doc. 46.) 25 Defendants’ motion included a Rand2 warning (Doc. 46-1), addressing the requirements

26 1 Because all parties consented to the jurisdiction of the assigned magistrate judge for all further proceedings, including entry of judgment, the matter was reassigned to the undersigned on March 1, 2024. (See Doc. 39 [Consent 27 Minute Order].)

2 1 concerning an opposition to a motion for summary judgment. Despite the passage of more than 2 21 days following Defendants’ filing and service of their motion, Plaintiff failed to file an 3 opposition or statement of non-opposition to the motion. 4 Accordingly, on March 31, 2025, the Court issued its Order to Show Cause (OSC) in 5 Writing Why Sanctions Should Not Be Imposed for Plaintiff’s Failure to File an Opposition or 6 Statement of Non-Opposition. (Doc. 49.) Plaintiff was ordered to respond to the OSC within 14 7 days, or, alternatively, to file an opposition or statement of non-opposition to Defendants’ motion 8 for summary judgment. (Id.) 9 On April 17, 2025, Plaintiff filed an untitled document seeking an extension of time 10 within which to file an opposition to Defendants’ summary judgment motion. (Doc. 50.) 11 On April 21, 2025, the Court issued its Order Discharging Order to Show Cause and 12 Order Granting Plaintiff’s Request for a 90-Day Extension of Time Within Which to Oppose 13 Defendants’ Motion for Summary Judgment. (Doc. 51.) Plaintiff was ordered to file any 14 opposition “no later than July 18, 2025.” (Id. at 2) (emphasis in original.) 15 On June 26, 2025, Plaintiff filed an untitled document seeking an additional 30 days 16 within which to oppose Defendants’ summary judgment motion, stating he was “almost done.” 17 (Doc. 52.) 18 The Court issued its Order Granting Plaintiff’s Request for a 30-Day Extension of Time 19 Within Which to Oppose Defendants’ Motion for Summary Judgment on June 30, 2025. (Doc. 20 53.) As such, Plaintiff was ordered to “file an opposition to Defendants’ motion for summary 21 judgment no later than Monday, August 18, 2025.” (Id. at 2, emphasis in original.) 22 To date, Plaintiff has failed to file an opposition to Defendants’ summary judgment 23 motion and the time to do so has passed. Given the foregoing, the Court considers Defendants’ 24 summary judgment motion to be unopposed. 25 II. APPLICABLE LEGAL STANDARDS 26 Motions for Summary Judgment 27 Summary judgment is appropriate when it is demonstrated that there “is no genuine 1 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 2 “citing to particular parts of materials in the record, including depositions, documents, 3 electronically stored information, affidavits or declarations, stipulations (including those made for 4 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 5 Civ. P. 56(c)(1)(A). 6 Summary judgment should be entered, after adequate time for discovery and upon motion, 7 against a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party's case, and on which that party will bear the burden of proof at trial. See 9 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 10 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. 11 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to 12 establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 14 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 15 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 16 and/or admissible discovery material, in support of its contention that the dispute exists or shows 17 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 18 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 19 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 20 governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 21 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Further, the opposing 22 party must also demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable 23 jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 24 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, 25 the opposing party need not establish a material issue of fact conclusively in its favor. It is 26 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 27 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the 1 whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 2 56(e) advisory committee’s note on 1963 amendments). 3 In resolving the summary judgment motion, the evidence of the opposing party is to be 4 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 5 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 6 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 7 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 8 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th 9 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 10 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 11 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 12 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 13 A court may grant an unopposed or inadequately opposed motion for summary judgment 14 if the supporting papers are sufficient to warrant granting the motion and do not on their face 15 reveal a genuine issue of material fact. See Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th 16 Cir. 1993). 17 Eighth Amendment: Excessive Force 18 “[T]he unnecessary and wanton infliction of pain on prisoners constitutes cruel and 19 unusual punishment” in violation of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 328 20 (1986) (internal quotation marks & citation omitted). As courts have succinctly observed, 21 “[p]ersons are sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F. Supp. 22 797, 800 (N.D. Iowa) (quoting Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977)) (citation 23 omitted). “Being violently assaulted in prison is simply not part of the penalty that criminal 24 offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) 25 (internal quotation marks & citation omitted). 26 A correctional officer engages in excessive force in violation of the Cruel and Unusual 27 Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances, 1 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). In other 2 words, “whenever prison officials stand accused of using excessive physical force …, the core 3 judicial inquiry is … whether force was applied in a good-faith effort to maintain or restore 4 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 5 (1992). In making this determination, courts may consider “the need for application of force, the 6 relationship between that need and the amount of force used, the threat reasonably perceived by 7 the responsible officials, and any efforts made to temper the severity of a forceful response.” Id. 8 at 7. Courts may also consider the extent of the injury suffered by the prisoner. Id. However, the 9 absence of serious injury is not determinative. Id. 10 Eighth Amendment: Failure to Intervene 11 Prison officials have a duty to take reasonable steps to protect inmates from physical 12 abuse. Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The 13 failure to intervene can support an excessive force claim where the bystander-officers had a 14 realistic opportunity to intervene but failed to do so. Lolli v. County of Orange, 351 F.3d 410, 418 15 (9th Cir. 2003); Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (stating failure to 16 intervene can violate prisoner's Eighth Amendment rights). “A guard who stands and watches 17 while another guard beats a prisoner violates the Constitution ....” George v. Smith, 507 F.3d 605, 18 609-10 (7th Cir. 2007). 19 Eighth Amendment: Deliberate Indifference to Serious Medical Need 20 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 21 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 22 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 23 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 24 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 25 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 26 Cir. 1997) (en banc)). 27 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 1 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 2 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 3 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 4 (quotation marks omitted)). 5 As to the first prong, indications of a serious medical need “include the existence of an 6 injury that a reasonable doctor or patient would find important and worthy of comment or 7 treatment; the presence of a medical condition that significantly affects an individual’s daily 8 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 9 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 10 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs 11 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 12 worthy of comment or treatment; the presence of a medical condition that significantly affects an 13 individual’s daily activities; or the existence of chronic and substantial pain”). 14 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 15 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 16 safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 17 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 18 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 19 Id. at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 20 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 21 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 22 substantial; however, such would provide additional support for the inmate’s claim that the 23 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096 (citing McGuckin, 24 974 F.2d at 1060). 25 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 26 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 27 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 1 official should have been aware of the risk, but was not, then the official has not violated the 2 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 3 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 4 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 5 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see Jett, 439 F.3d at 1096; 6 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 7 based on delay in treatment must show delay led to further injury). 8 III. PLAINTIFF’S ALLEGATIONS 9 Briefly stated, in the operative complaint,3 Plaintiff alleges that on July 19, 2019,4 while 10 he was incarcerated at Kern Valley State Prison in Delano, California, he was having a mental 11 breakdown. Plaintiff alleges officers were aware of his breakdown but refused “to alert medical.” 12 Plaintiff then cut his wrists and attempted to hang himself with a sheet. The “sheet broke” and 13 Plaintiff fell to the floor. He was out of breath and still did not receive medical help, even after an 14 attempted suicide “and self-mutilation.” 15 Further, Plaintiff contends that when correctional staff entered his cell, Defendant 16 Dominguez slammed Plaintiff back to the floor and Defendant Flores jumped on his back and 17 placed him in a chokehold. Dominguez then kicked Plaintiff “in the forehead with his steel boot.” 18 He also maintains no one intervened to stop the assault. 19 IV. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS 20 Defendant submitted the following statements of undisputed facts: 21 1. The procedure for emergency cell extractions is outlined in section 51020.12.2 of the 22 Department of Corrections and Rehabilitation’s Department Operation Manual 23 (DOM). 24

25 3 See Doc. 22 (second amended complaint); see also Docs. 14 (first amended complaint) & 21 (second screening order). 26 4 Plaintiff testified at his deposition that he believed the incident occurred on July 19, 2019, whereas defense counsel 27 referenced an incident date of July 18, 2019. See Deposition of Ricardo Wheatley, Jr., at 10:7-10 & 16:16-23. The relevant incident and medical reports reveal the date of the incident to be July 18, 2019. See Doc. 46-6 at 28-61 1 2. As defined by section 51020.12.2, “[a]n extraction is the involuntary removal of an 2 inmate from an area and usually occurs when the inmate is in a confined area such as a 3 cell, holding cell, shower, or small exercise yard.” 4 3. “Extractions can be conducted as a controlled or immediate use of force.” 5 4. “Immediate extractions occur when an imminent threat exists. Some examples of 6 when an immediate extraction may be necessary are: to prevent or stop, great bodily 7 injury and/or serious bodily injury, attempted suicide, self–harm, in-cell assault, or for 8 medical concerns such as an inmate who is non-responsive, convulsing, or seizing.” 9 5. When conducting an emergency cell extraction, officers are entitled to equip a riot 10 helmet with a protective face shield, a protective vest, a protective shield, hand-held 11 batons, and handcuffs. 12 6. As an emergency cell entry is considered an immediate use of force, advanced 13 planning, staffing, and organization are not required. 14 7. However, all force must be reasonable and in accord with applicable standards for 15 deadly or non-deadly force. 16 8. On July 18, 2019 in Facility B, Building 4 at Kern Valley State Prison, nonparty 17 correctional staff informed Defendant Sergeant Denney that Plaintiff completely 18 covered his cell windows with cardboard and paper. 19 9. The nonparty correctional staff further explained that he or she was unable to get any 20 response from Plaintiff. 21 10. These nonparty correctional staff were not any of the Defendants. 22 11. Plaintiff never informed Dominguez, Denney, or Flores of Plaintiff’s mental 23 breakdown. 24 12. After hearing this and around 12:27 P.M., Sergeant Denney immediately reported to 25 Plaintiff’s cell with nonparty Officer Fernandez and ordered Plaintiff to remove his 26 window coverings and submit to handcuffs. 27 13. Plaintiff did not respond, and Denney could not see into Plaintiff’s cell because of the 1 14. Sergeant Denney then instructed nonparty Officer Fernandez to retrieve a protective 2 shield, which would be used as a protective barrier in front of the food part, to safely 3 view the condition of Plaintiff. 4 15. After Officer Fernandez placed the shield to cover the food port, Sergeant Denney 5 opened the food port and shined her flashlight into Plaintiff’s cell. 6 16. Officer Fernandez looked into the Plaintiff’s cell and observed Plaintiff lying on the 7 cell floor with a piece of white cloth wrapped around his neck. 8 17. Officer Fernandez also reported that Plaintiff was not moving. 9 18. Plaintiff continued to not move or respond to any orders—including the order to back 10 up to the cuff port and submit to handcuffs. 11 19. Sergeant Denney then ordered an immediate cell entry to check Plaintiff’s welfare. 12 20. Sergeant Denney also ordered the Control Booth Officer Hernandez to activate his 13 personal alarm device and open Plaintiff’s cell door. 14 21. Officer Hernandez then announced a Code 1 in Facility B Building 4 via his 15 institutional radio. 16 22. Because of his vantage point from within the Control Booth with the other correctional 17 staff in front of Plaintiff’s cell, Officer Hernandez could not see into the cell. 18 23. Officer Hernandez was positioned in the control booth and was not present in the cell 19 during the incident—nor was he permitted to leave the control booth. 20 24. When entering the cell, Officer Fernandez led in front of the correctional staff 21 followed by Sergeant Dominguez as well as Officer Flores, and Officer Morales. 22 25. Once the cell door opened, Plaintiff quicky rose from the ground and advanced 23 towards the correctional staff in an aggressive manner. 24 26. Plaintiff then grabbed the top of Officer Fernandez’s protective shield, pulled it down, 25 and struck Officer Fernandez on the right side of his face. 26 27. Using the protective shield and their combined body weight, Officer Fernandez and 27 Sergeant Dominguez forced Plaintiff to the ground under the safety shield. 1 bodyweight and kicking his legs rapidly under the shield. 2 29. Officer Fernandez and Sergeant Dominguez ordered Plaintiff to stop resisting and to 3 submit to handcuffs. 4 30. Plaintiff then stopped moving his legs and resisting by placing his hands behind his 5 back. 6 31. Once Plaintiff’s hands were behind his back, Officer Morales placed handcuffs on 7 Plaintiff with no resistance. 8 32. While Officer Flores began to place leg restraints on Plaintiff, Plaintiff forcefully 9 kicked and pulled his legs and feet away from Officer Flores’s hands. 10 33. In response to Plaintiff’s resumed resistance, Officer Flores placed his knees and 11 bodyweight on Plaintiff’s calves and was able to apply leg restraints. 12 34. Officer Morales and Officer Flores then assisted Plaintiff to his feet, searched for 13 contraband, and escorted him to Facility B Program Area for holding cell placement 14 and a medical assessment. 15 35. Denney then announced a Code 4 via institutional radio. 16 36. After placing Plaintiff in a holding cell, Officer Morales removed the handcuffs from 17 Plaintiff and conducted an unclothed body search. 18 37. Officer Morales also offered Plaintiff clean clothing, but Plaintiff refused. 19 38. At 12:45 P.M., medical staff saw Plaintiff for a medical assessment. 20 39. Plaintiff’s medical assessment only noted injury to his face. 21 40. Specifically, the assessment noted that Plaintiff had an abrasion and dried blood above 22 his right eye on his forehead as well as swelling below his right eye. 23 41. Plaintiff was seen for a medical evaluation before Officer Fernandez, Officer Flores, 24 and Sergeant Dominguez received their medical evaluations. 25 42. After Plaintiff was transferred to a different prison, Plaintiff had another medical 26 report conducted on July 19, 2019, which also only noted injury to his face. 27 43. After the incident, Officer Fernandez reported to the Treatment and Triage Area for a 1 including injuries to his face, right elbow, and knees. 2 44. At 1:00 P.M., nonparty Investigative Services Unit Officer Bedolla was notified of the 3 incident with Plaintiff. 4 45. Officer Bedolla then took several photographs of Officer Fernandez to document the 5 injuries Officer Fernande[z] suffered from Plaintiff punching him. 6 46. Also after the incident, medical staff evaluated Officer Flores at 2:35 P.M. and 7 Sergeant Dominguez at 1:00 P.M. because of injuries they suffered during the 8 incident. 9 (See Doc. 46-3 [hereafter UDF].)5 10 V. DISCUSSION 11 Defendants assert the following arguments: (1) Defendants’ use of force was warranted 12 because they were attempting to subdue Plaintiff’s attack and restore order; (2) Defendants are 13 not liable for failure to intervene because the underlying excessive force claim fails and 14 Defendants did not have the opportunity to intercede given the circumstances; (3) Defendants are 15 not liable for medical indifference because the record proves that Defendants acted immediately 16 as soon as they were aware of Plaintiff’s self-harm; and (4) Defendants are entitled to qualified 17 immunity because they did not violate Plaintiff’s constitutional rights and their conduct was 18 objectively reasonable. (Doc. 46-2.) 19 The Court has reviewed all the evidence presented, including supporting declarations of 20 defense counsel, Defendant J. Hernandez, and B. Hancock, the transcript from Plaintiff’s 21 deposition taken December 12, 2024, and all exhibits, and Plaintiff’s verified pleadings.

22 5 Because Plaintiff did not file an opposition, he neither admitted nor denied the facts set forth by Defendants as undisputed nor filed a separate statement of disputed facts. Local Rule 260(b). A verified complaint in a pro se civil 23 rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. 24 Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985); Fed. R. Civ. P. 56(e). Here, because Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to 25 have admitted those facts not disputed by his complaint or other submissions. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing specifically to challenge the facts identified in the defendant’s statement of undisputed 26 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant's] statement”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020) (deeming defendant’s 27 undisputed facts as admitted after plaintiff failed to comply with Local Rule 260(b)); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (nonmovant’s contentions in other pleadings are to be considered in connection with 1 A. Defendants Dominguez and Flores Are Entitled to Summary Judgment on Plaintiff’s Eighth Amendment Excessive Force Claim 2 1. The Use of Force Was Necessary 3 4 Defendants Dominguez and Flores have presented evidence the use of force was 5 necessary under the circumstances because after Plaintiff completely covered the windows of his 6 cell with paper and cardboard, staff were unable to get any response from Plaintiff. UDF 8-9, 12- 7 13; see UDF 1-7. And Plaintiff had never informed Defendants Dominguez, Denney, or Flores of 8 his mental breakdown. UDF 11. Unable to get a response, Defendant Denney ordered an officer 9 to retrieve a protective shield that could be used as a barrier in front of the cell’s food port; once 10 in place, Defendant Denney opened the food port and shined her flashlight into Plaintiff’s cell. 11 UDF 14-15; see also UDF 5. Plaintiff was observed lying on the cell floor with a white cloth 12 wrapped around his neck and was not moving. UDF 16-18. He did not respond to orders to cuff 13 up. UDF 18. Defendant Denney ordered an immediate cell entry and directed Defendant 14 Hernandez to activate his personal alarm and to open Plaintiff’s cell door. UDF 19-20; see UDF 15 4, 6. Once the cell door opened, Plaintiff quickly rose and responded aggressively, advancing 16 toward staff. UDF 24-25. Plaintiff then grabbed the protective shield carried by Officer 17 Fernandez, pulled it down, and struck Fernandez on the right side of the face. UDF 26. Even after 18 Plaintiff was forced to the ground by staff, Plaintiff continued to resist. UDF 27-29, 32. 19 Ultimately, Plaintiff was retrained in handcuffs and leg restraints. UDF 31, 33. 20 Thus, Defendants Dominguez and Flores have met their initial burden by demonstrating 21 there is no genuine dispute as to any material fact concerning the first element of Plaintiff’s 22 excessive force claim. Fed. R. Civ. P. 56(a). 23 2. Only Necessary and Appropriate Force Was Used 24 Defendants Dominguez and Flores have presented evidence demonstrating staff employed 25 only necessary and appropriate force to overcome Plaintiff’s assault on Officer Fernandez and 26 continued resistance and to ensure institutional safety and security. UDF 25-29, 31-33. Thus, 27 Defendants Dominguez and Flores have met their initial burden by demonstrating there is no 1 force claim. Fed. R. Civ. P. 56(a). 2 3. The Use of Force Was Proportional to the Threat Posed 3 Defendants Dominguez and Flores have presented evidence demonstrating the use of 4 force was proportional to the threat posed by Plaintiff – specifically, Plaintiff’s striking Officer 5 Fernandez and his ongoing resistance to orders to cuff up and submit to leg restraints. UDF 25- 6 34. Thus, Defendants Dominguez and Flores have met their initial burden by demonstrating there 7 is no genuine dispute as to any material fact concerning the third element of Plaintiff’s excessive 8 force claim. Fed. R. Civ. P. 56(a). 9 4. Plaintiff’s Injuries Were Minor 10 Defendants Dominguez and Flores have presented evidence demonstrating that Plaintiff 11 had an abrasion and dried blood above his right eye and swelling below his right eye. UDF 39-40. 12 Defendants argue those injuries are minor and inconsistent with Plaintiff’s allegations that he was 13 placed in a chokehold and struck by a steel toed boot. Thus, Defendants Dominguez and Flores 14 have met their initial burden by demonstrating there is no genuine dispute as to any material fact 15 concerning the fourth element of Plaintiff’s excessive force claim. Fed. R. Civ. P. 56(a). 16 5. Efforts Were Made to Temper the Severity of the Response 17 Defendants Dominguez and Flores have presented evidence demonstrating that efforts 18 were made to temper the severity of the response. UDF 25-34; see UDF 36-37. Essentially, 19 Defendants entered the cell to check on Plaintiff, responded to Plaintiff’s immediate aggression 20 by taking him to the ground and ordered him to cease resisting when Plaintiff offered resistance. 21 Thus, Defendants Dominguez and Flores have met their initial burden by demonstrating there is 22 no genuine dispute as to any material fact concerning the fifth and final element of Plaintiff’s 23 excessive force claim. Fed. R. Civ. P. 56(a). 24 6. Plaintiff Has Not Met His Burden of Production 25 As noted above, Defendants Dominguez and Flores have met their initial burden as to 26 each element of Plaintiff’s excessive force claim against them, by demonstrating there is no 27 genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). Therefore, the burden shifts to 1 does exist. Matsushita, 475 U.S. at 586. Plaintiff has failed to do so; he has tendered no evidence 2 to support his claim in this action. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11; Henry, 3 983 F.2d at 950. 4 Further, the assertions made in Plaintiff’s complaint do not establish the existence of any 5 factual dispute. See Fed. R. Civ. P. 56(c); Beard, 548 U.S. at 527; McElyea, 833 F.2d at 197-98. 6 Plaintiff has completely failed to offer proof concerning the essential elements of his Eighth 7 Amendment excessive force claim against Defendants Dominguez and Flores. Celotex, 477 U.S. 8 at 322. 9 Here, the record taken as a whole would not lead a rational trier of fact to find for Plaintiff 10 on his Eighth Amendment excessive force claim. Matsushita, 475 U.S. at 587. In sum, 11 Defendants Dominguez and Flores are entitled to summary judgment. 12 B. Defendants Dominguez, Denney, and Hernandez Are Entitled to Summary Judgment on Plaintiff’s Eighth Amendment Failure to Intervene Claim 13 14 Defendants Dominguez, Denney, and Hernandez contend Plaintiff’s failure to intervene 15 claim against them fails because he cannot establish excessive force and because they lacked the 16 opportunity to intervene in these circumstances. Defendants have presented evidence that 17 demonstrating that the space of the cell, its lighting, the number of staff involved in the incident, 18 and its timing hindered any opportunity to intervene even had Plaintiff’s excessive force claim 19 been viable. UDF 8-9, 12-13, 15, 19, 24. Notably too, Defendant Hernandez was not present in 20 the cell during the incident, nor could he observe the incident or leave his post. UDF 22-23. Thus, 21 Defendants Dominguez, Denney, and Hernandez have met their initial burden by demonstrating 22 there is no genuine dispute as to any material fact concerning Plaintiff’s failure to intervene 23 claim. Fed. R. Civ. P. 56(a). Therefore, the burden shifts to Plaintiff as the non-moving party to 24 establish that a genuine issue as to any material fact actually does exist. Matsushita, 475 U.S. at 25 586. Plaintiff has failed to do so; he has tendered no evidence to support this claim. Fed. R. Civ. 26 P. 56(c); Matsushita, 475 U.S. at 586 n.11; Henry, 983 F.2d at 950. 27 Further, the assertions made in Plaintiff’s complaint do not establish the existence of any 1 Importantly, although Plaintiff alleges unidentified officers were aware he was experiencing a 2 mental break down around the time of the use of force incident (see Doc. 22 at 3), he does not 3 allege that Defendants were aware, nor does he refute their evidentiary showing that they were 4 unaware of his mental health status. Further, although he alleges that he showed or attempted to 5 show Defendants his wounds as they entered his cell (see id. at 4), he does not contradict 6 Defendants’ evidentiary showing that he presented aggressively and combatively when they 7 entered. In short, Plaintiff has failed to offer proof concerning an Eighth Amendment failure to 8 intervene claim against Defendants Dominguez, Denney, and Hernandez. Celotex, 477 U.S. at 9 322. 10 The record taken as a whole would not lead a rational trier of fact to find for Plaintiff on 11 his Eighth Amendment failure to intervene claim. Matsushita, 475 U.S. at 587. Thus, Defendants 12 Dominguez, Denney, and Hernandez are entitled to summary judgment. 13 C. Defendants Dominguez, Denney, Flores, and Hernandez Are Entitled to 14 Summary Judgment on Plaintiff’s Eighth Amendment Deliberate Indifference to Serious Medical Needs Claim 15 16 Defendants Dominguez, Denney, Flores and Hernandez have presented evidence 17 demonstrating that they acted quickly and without delay to respond to Plaintiff’s serious medical 18 needs. Specifically, they assert Plaintiff never made Defendants Dominguez, Denney, or Flores of 19 his mental breakdown. UDF 11. As concerns Defendant Hernandez, he could not leave his 20 assigned post in the control tower. UDF 23. Moreover, Defendants’ evidence reveals that all staff 21 responded quickly and without delay to Plaintiff’s cell and to his medical needs. UDF 8-9, 12-21, 22 24, 36-38, 41-42; see UDF 43, 46. Thus, Defendants Dominguez, Denney, Flores, and Hernandez 23 have met their initial burden by demonstrating there is no genuine dispute as to any material fact 24 concerning Plaintiff’s deliberate indifference to serious medical needs claim. Fed. R. Civ. P. 25 56(a). Therefore, the burden shifts to Plaintiff as the non-moving party to establish that a genuine 26 issue as to any material fact actually does exist. Matsushita, 475 U.S. at 586. Plaintiff has failed 27 to do so; he has tendered no evidence to support this claim. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11; Henry, 983 F.2d at 950. 1 Further, the assertions made in Plaintiff's complaint do not establish the existence of any 2 | factual dispute. See Fed. R. Civ. P. 56(c); Beard, 548 U.S. at 527; McElyea, 833 F.2d at 197-98. 3 | Although he alleges Defendants “never pressed [their] alarms for medical” (see Doc. 22 at 4), 4 | Plaintiff acknowledges his assessment and characterization was made while he was laying on the 5 | ground unresponsive; hence, he is not a percipient witness or competent to speculate about 6 | whether the responding officers summonsed medical assistance. In short, Plaintiff has failed to 7 | offer proof concerning an Eighth Amendment deliberate indifference to serious medical needs 8 | claim against Defendants Dominguez, Denney, Flores, and Hernandez. Celotex, 477 U.S. at 322. 9 In conclusion, the record taken as a whole would not lead a rational trier of fact to find for 10 | Plaintiff on his Eighth Amendment deliberate indifference to serious medical needs claim. 11 | Matsushita, 475 U.S. at 587. Therefore, Defendants Dominguez, Denney, Flores, and Hernandez 12 | are entitled to summary judgment. 13 D. The Remaining Argument 14 The Court will not address Defendants’ argument that they are entitled to qualified 15 | immunity because it has determined Defendants are entitled to judgment on the merits as 16 || discussed above. 17 VI. CONCLUSION AND ORDER 18 Based on the foregoing, this Court HEREBY ORDERS that: 19 1. Defendants’ motion for summary judgment (Doc. 46) is GRANTED; and 20 2. The Clerk of the Court be directed to enter judgment in favor of Defendants 21 Dominguez, Denney, Flores, and Hernandez, and to close this case. 22 | IT IS SOORDERED. | Dated: _ September 8, 2025 | Wr bo 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 16