Whitall v. Gutierrez

• Court: District Court, N.D. California
• Decided: October 24, 2023
• Docket: 3:18-cv-01376
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 RAYMOND RICHARD WHITALL, Case No. 18-cv-01376-CRB

9 Plaintiff,

ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY 11 S.D. GUTIERREZ, et al., JUDGMENT 12 Defendants.

13 Plaintiff Raymond Whitall, a prisoner at Salinas Valley State Prison (SVSP), brings 14 various federal and state claims against SVSP correctional officers Gutierrez, Gudino, 15 Aboytes, Vasquez, Ramirez, and Caballero (collectively, “Defendants”), arising out of an 16 incident where Defendants allegedly attacked him in prison. See Second Am. Compl. (dkt. 17 8) at 8–13. 18 The Court previously dismissed Whitall’s state law claims on the grounds that he 19 failed to comply with California’s Government Claims Act (“GCA”). Summ. J. Order. 20 (dkt. 50) at 2. However, the State of California later realized it made a mistake—in fact, 21 Whitall had complied with the GCA—so Whitall filed a motion to vacate the Court’s 22 previous order dismissing Whitall’s state law claims. See Mot. to Vacate (dkt. 104). The 23 Court vacated its prior summary judgment order and reinstated eight of his state tort 24 claims. See Order Granting Mot. to Vacate (dkt. 113). 25 Defendants now move for summary judgment again on six of those reinstated state 26 claims: (1) cruel and unusual punishment; (2) use of unnecessary force; (3) dependent 27 adult abuse; (4) battery against a dependent adult; (5) dependent adult and endangerment; 1 and (6) intentional infliction of emotion distress.1 Defendant Gudino also moves for 2 summary judgment as to all of Whitall’s claims against him on qualified immunity 3 grounds. The Court GRANTS summary judgment for Defendants on Whitall’s claims for 4 (1) cruel and unusual punishment, and (2) use of unnecessary force, and DISMISSES those 5 claims. However, the Court DENIES summary judgment as to the other four tort claims, 6 as well as to the rest of the claims against Defendant Gudino. 7 I. BACKGROUND 8 On February 28, 2017, Plaintiff Raymond Whitall, a prisoner in custody at SVSP, 9 approached a correctional officer and requested medical care for his injured finger. See 10 Second Am. Compl. at 8–9. Several correctional officers escorted him to a holding cage. 11 Id. at 9. While in the holding cage, Whitall was strip-searched. Id. at 9. Whitall says he 12 was then released from the holding cell to pick up his clothes and get dressed, but in the 13 process, he fell to the ground due to a vertigo episode caused by his Meniere’s disease. Id. 14 at 10. While Whitall was “writhing on the floor in pain,” he alleges that Defendants 15 “suddenly, without warning, and viciously, struck him several times in the head.” Id. at 16 11. The injuries he sustained during the incident allegedly left Whitall concussed and in 17 the hospital. Id. at 12. 18 Whitall filed a pro se second amended complaint in 2018, asserting a laundry list of 19 claims related to the February 2017 incident, as well as claims related to a separate 20 incident (“Event II”) that occurred once he returned to prison. See Second Am. Compl. 21 The Court screened the case, see 28 U.S.C. § 1915A(a), and found that, liberally 22 construed, Whitall’s allegations appeared to state arguably cognizable claims for damages 23 under § 1983 and state tort claims against the named individual SVSP officials involved in 24 both incidents. See Order of Service (dkt. 10) at 2. The Court found otherwise as against 25 the State of California, the California Department of Corrections and Rehabilitation, 26 former SVSP Warden Muniz and then-current SVSP Warden Hatton, so the Court 27 1 dismissed those defendants and permitted the case to proceed only against the individual 2 SVSP officials. Id. 3 A few months later, Defendants filed motions to dismiss on improper joinder 4 grounds. See Mots. to Dismiss (dkts. 14, 17). Granting those motions in part, the Court 5 dismissed Whitall’s claims stemming from Event II because they were unrelated to the 6 February 2017 incident and against different defendants—and therefore did not satisfy the 7 requirements for permissive joinder under Federal Rule of Civil Procedure 20(a)(2). See 8 Mot. to Dismiss Order (dkt. 29) at 2–4. The court also dismissed the corresponding SVSP 9 officials for the Event II claims. Id. at 4. Going forward, Whitall’s action was limited to 10 his “arguably cognizable claim” that in February 2017, Defendants Gutierrez, Gudino, 11 Aboytes, Vasquez, Ramirez, and Caballero “used excessive force against him in violation 12 of the Eighth Amendment and state law.”2 Id. 13 Defendants then moved for summary judgment on Whitall’s state tort claims, 14 claiming that Whitall failed comply with California’s Government Claims Act (“GCA”), 15 which requires first filing a claim with the California Victim Compensation and 16 Government Claims Board. See First Mot. Summ. J. (dkt. 38). Defendants’ motion was 17 based on information provided by the Department of General Services—the department 18 that maintains records of claims filed by inmates—which indicated that Whitall failed to 19 file a government claim related to the February 2017 incident. See Reply First Mot. 20 Summ. J. (Dkt. 46-1, Exs. A–G). The Court granted Defendants’ summary judgment 21 motion based on Whitall’s failure to comply with the GCA and dismissed his state tort 22 claims. See Dkt. 50. That limited the action to Whitall’s sole Eighth Amendment claim 23 against the Defendants. Id. 24 At that time, trial appeared imminent, see Order Referring to FPBP (dkt. 74), so the 25 Court appointed Whitall counsel, see Order Appointing Counsel (dkt. 80). 26

27 2 The Court also allowed the action to proceed against SVSP correctional officer A. 1 Then, the parties learned that California’s Department of Government Services had 2 made a mistake: in fact, Whitall had complied with the GCA and filed a government claim 3 for the February 2017 incident. See, e.g., dkt. 104-5, Ex. D. Once that information came 4 to light, Whitall filed a motion to vacate the Court’s order dismissing his state tort claims. 5 See Mot. to Vacate (dkt. 104). The Court agreed to vacate its earlier order and reinstated 6 Whitall’s state law claims that were viable prior to the summary judgment order, which 7 were: (1) cruel and unusual punishment; (2) battery; (3) use of unnecessary force; (4) 8 dependent adult abuse; (5) battery against a dependent adult; (6) dependent adult 9 endangerment; (7) intentional infliction of emotional distress; and (8) the Bane Civil 10 Rights Act. See Order Granting Mot. to Vacate (dkt. 113). The Court noted that it would 11 permit Defendants to file “another summary judgment motion as to these state claims at 12 the close of discovery.” Id. 13 Defendants took the Court up on that offer. The motion at issue is Defendants’ 14 second motion for summary judgment as to six of Whitall’s reinstated tort claims: (1) cruel 15 and unusual punishment; (2) use of unnecessary force; (3) dependent adult abuse; (4) 16 battery against a dependent adult; (5) dependent adult endangerment; and (6) intentional 17 infliction of emotional distress. See Mot. (dkt. 137). Defendant Gudino also moves for 18 summary judgment as to all of Whitall’s claims against him on qualified immunity 19 grounds. Id. 20 II. LEGAL STANDARD 21 Summary judgment is appropriate “if the movant shows that there is no genuine 22 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 23 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A 24 genuine issue of fact is one that could reasonably be resolved in favor of either party. See 25 Celotex, 477 U.S. at 322–23. A dispute is “material” only if it could affect the outcome of 26 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 27 (1986). 1 always, a defendant—has both the initial burden of production and the ultimate burden of 2 persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz 3 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing 10A Charles Alan Wright, Arthur R. 4 Miller and Mary Kay Kane, Federal Practice and Procedure § 2727 (3d ed. 1998)). “In 5 order to carry its burden of production, the moving party must either produce evidence 6 negating an essential element of the nonmoving party’s claim or defense or show that the 7 nonmoving party does not have enough evidence of an essential element to carry its 8 ultimate burden of persuasion at trial.” Id. (citing High Tech Gays v. Defense Indus. Sec. 9 Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). 10 “If a moving party fails to carry its initial burden of production, the nonmoving 11 party has no obligation to produce anything.” Id. at 1103 (internal citation omitted). If, 12 however, a moving party carries its burden of production, the nonmoving party must 13 produce evidence to support its claim or defense. See id. If the nonmoving party fails to 14 produce enough evidence to create a genuine issue of material fact, the moving party wins 15 the motion for summary judgment. See id. But if the nonmoving party produces enough 16 evidence to create a genuine issue of material fact, the nonmoving party defeats the 17 motion. See id. 18 III. DISCUSSION 19 A. All Defendants 20 Defendants Gutierrez, Gudino, Aboytes, Vasquez, Ramirez, and Caballero move for 21 summary judgment on six of Whitall’s state tort claims: (1) cruel and unusual punishment; 22 (2) use of unnecessary force; (3) dependent adult abuse; (4) battery against a dependent 23 adult; (5) dependent adult endangerment; and (6) intentional infliction of emotional 24 distress. See Mot. 25 1. Cruel and Unusual Punishment 26 Whitall brings a state law claim for cruel and unusual punishment “in violation of 27 California Constitution’s Article I, § 17.” Second Am. Compl. at 27. Defendants argue 1 damages under Article I, Section 17 of the California Constitution.” Mot. at 4 (quoting 2 Giraldo v. CDCR, 168 Cal. App. 4th 231, 256 (2009)). Whitall responds by claiming that 3 he seeks declaratory relief under Article I, § 17, not damages.3 Resp. at 5. In reply, 4 Defendants argue that declaratory relief is not appropriate here, particularly because 5 Whitall gives no detail for its application. Reply at 2. 6 The Court finds that Whitall’s state law cruel and unusual punishment claim is a 7 claim for damages disallowed under California law. When the Court screened Whitall’s 8 complaint pursuant to 28 U.S.C. § 1915A(a), it determined which of Whitall’s federal and 9 state law claims were arguably cognizable. See Order for Service at 2. The Court then 10 concluded that Whitall’s “action for damages” could proceed for these claims. Id. 11 (emphasis added). The Court never said anything about permitting Whitall’s action for 12 declaratory relief for any of those claims. Id. That Whitall’s state law cruel and unusual 13 punishment claim only seeks damages is further confirmed by the Court’s Order 14 reinstating the claim. See Order Granting Mot. to Vacate. In that Order, the Court 15 explained that, while the only issue was the motion to vacate, Whitall’s cruel and unusual 16 punishment claim may fail as a matter of law given that damages suits are not permitted 17 under Article 1, §17. Id. at 2 & n.1 (citing Giraldo, 168 Cal. App. 4th at 256). This 18 indicates that the Court understood Whitall’s cruel and unusual punishment claim to be 19 proceeding as to damages only. Notably, Whitall did not claim he was seeking declaratory 20 relief when arguing for the claim’s reinstatement. See Reply Mot. to Vacate (dkt. 111). 21 It is therefore clear that the Court permitted Whitall’s state law cruel and unusual 22 punishment to proceed only as to damages—both when the Court originally screened his 23 complaint and when the Court reinstated the claim. Because it is undisputed that “there is 24

25 3 He also argues that he seeks damages for his cruel and unusual punishment claim under Civil Code § 52.1 (the “Bane Civil Rights Act”). Reply at 5. However, Whitall’s claim 26 for cruel and unusual punishment asserts a violation of Article 1 § 17, not the Bane Civil Rights Act. Second Am. Compl. at 27. The question before the Court is therefore whether 27 Whitall’s claim under Article 1 § 17 fails as a matter of law. Moreover, because 1 no basis to recognize a claim for damages under Article I, § 17 of the California 2 Constitution,” see Giraldo, 168 Cal. App. 4th at 256, which is the section Whitall asserts a 3 violation of, the Court grants Defendants’ motion for summary judgment on this claim. 4 However, even assuming that Whitall properly seeks declaratory relief, and that 5 declaratory relief is permitted under Article I, § 17 of the California Constitution, see 6 Arroyo v. Tilton, 2012 WL 1551655, at *9 (E.D. Cal. Apr. 30, 2012), the Court would still 7 grant Defendants’ summary judgment motion on this claim. That is because Whitall never 8 specifies the nature of the declaratory relief he is seeking; he simply says he is seeking 9 “declaratory relief” for the Defendants’ alleged violations of Article 1, § 17. See Resp. at 10 5; Second Am. Compl. 44–45. Because he fails to state the contents of his requested 11 declaratory relief, Defendants would still be entitled to judgment as a matter of law on this 12 claim. See, e.g., Sisson v. Gowdy, 2023 WL 2973768, at *1 (S.D. Ind. Apr. 17, 2023) 13 (“Mr. Sisson has failed to specify the contents of the declaratory judgment he seeks, so he 14 has not stated an actionable claim for declaratory relief.”); see also Fed. R. Civ. P. 57 15 (“The demand for relief shall state with precision the declaratory judgment relief.”). 16 2. Use of Unnecessary Force 17 Whitall brings a state law claim for use of unnecessary force, alleging that 18 Defendants acted in violation of section 3268 of Title 15 of the California Code of 19 Regulations. Second Am. Compl. at 34. Defendants assert that there is no implied right of 20 action under Title 15 of the California Code of Regulations, and that they are therefore 21 entitled to summary judgment on this claim. Mot. at 4 (citing Treglia v. Cate, 2010 WL 22 3398542, at *2. (N.D. Cal. Aug. 26, 2010); Davis v. Powell, 901 F. Supp. 2d 1196, 1211 23 (S.D. Cal. 2011)). 24 Whitall does not dispute that there is no implied private right of action under Title 25 15 of the California Code of Regulations. Resp. at 5. Instead, Whitall claims that his use 26 of unnecessary force claim supports liability under another provision: Civil Code § 52.1 27 (the “Bane Civil Rights Act”). However, the Defendants do not move for summary 1 whether Whitall’s Title 15 claim fails as a matter of law has no effect on what allegations 2 may or may not support his separate Bane Civil Rights claim. Because Whitall concedes 3 he does not have a basis to bring a use of unnecessary force claim under section 3268 of 4 Title 15 of the California Code of Regulations, the Court grants Defendants’ motion for 5 summary judgment as to this claim. 6 3. Elder Abuse Claims 7 Whitall asserts three state law claims under the Elder Abuse and Dependent Adult 8 Civil Protection Act: (1) dependent adult abuse; (2) battery against a dependent adult; and 9 (3) dependent adult endangerment. Defendants move for summary judgment on these 10 three claims, arguing that Whitall does not qualify as a “dependent adult.” Mot. at 5–6. 11 A “dependent adult” is a person, regardless of whether the person lives 12 independently, between the ages of 18 and 64 years who resides in California and has 13 physical or mental limitations that restrict his or her ability to carry out normal activities or 14 to protect his or her rights, including, but not limited to, persons who have physical or 15 developmental disabilities, or whose physical or mental abilities have diminished because 16 of age.4 Cal. Welf. & Inst. Code § 15610.23 (emphasis added). 17 Whitall asserts that a reasonable jury could find him to be a dependent adult based 18 on his physical and mental limitations, specifically his: (1) hearing impairments; (2) 19 mobility impairments; and (3) “severe mental health issues that prevent him from being 20 housed in the prison’s general population.” Resp. at 5. Defendants argue that, while 21 Whitall indeed suffers from physical and mental limitations, those limitations do not 22 qualify him as a dependent adult because he has failed to show that they restrict his ability 23

24 4 The Court ordered the parties to submit additional briefing on whether inmates can qualify as “dependent adults” under California’s Elder Abuse and Dependent Adult Civil 25 Protection Act (the “Act”). See Dkt. 192, minute entry; Cal. Welf. & Inst. Code §15600. Both parties found authority that supports the application of the Act to inmates. See Def. 26 Supp. Br. (dkt. 193) at 2 (“[T]he Act appears to apply to the California Department of Corrections and Rehabilitation’s institutions.”); see also Pl. Supp. Br. (dkt. 192) at 1 27 (“[C]ourts in California have allowed prison inmates to bring claims under the Act.”). The 1 to carry out normal activities. Mot. at 6. They cite Estate of Shinkle, 97 Cal. App. 4th 990 2 (2002), in which the adult in question was found to be a dependent adult because she 3 “needed assistance with most activities of daily living,” id. at 1005. 4 The Court agrees with Whitall. A reasonable jury could find, based on the evidence 5 in the record, that Whitall’s mobility impairments and severe mental health issues restrict 6 his ability to “carry out normal activities.” His disability code for his mobility impairment 7 indicates that he “uses an assistive device other than a wheelchair to ambulate, and cannot 8 walk up or down stairs.” Reply at 5 (citing Second Am. Compl. at 7, 18). Courts have 9 found that “[w]alking, of course, is a normal activity” and that limitations on an adult’s 10 ability to walk support a finding that the person is a dependent adult. People v. Matye, 158 11 Cal. App. 4th 921, 925 (2008). More importantly, the fact that Whitall resides in 12 Enhanced Outpatient Program (“EOP”) Housing, which is appropriate for prisoners who 13 have mental health conditions that cause “impairment in the activities of daily living (e.g., 14 eating, grooming & personal hygiene, maintenance of housing area, ambulation),” suggests 15 that Whitall’s alleged restrictions are, in fact, comparable to that of the adult in Estate of 16 Shinkle. Id. (citing California Department of Corrections and Rehabilitation (CDCR), 17 Understanding the Enhanced Outpatient Program: Insight into the Programming and 18 Services Available to EOP Patients, available at https://www.cdcr.ca.gov/bph/wp- 19 content/uploads/sites/161/2021/10/MHSDS-ENHANCED-OUTPATIENT-PROGRAM- 20 October2021.pdf (last visited Oct. 18, 2023)). 21 Defendants’ reliance on Jay v. Kubly (an unpublished California appellate court 22 case) does not move the needle. 2008 WL 77572, at *5 (Cal. Ct. App. Jan. 8, 2008). In 23 that case, unlike in Whitall’s, there was no evidence that the adult in question “who 24 admittedly lived independently, nonetheless suffered from restrictions in the ability to 25 carry out normal activities.” Id. 26 While Defendants point out facts that could support a contrary conclusion on the 27 “dependent adult” question—such as Whitall’s plans to “parole to a hotel, rent a truck, go 1 previously described makes it a genuine issue of material fact. Therefore, the Court denies 2 Defendants’ motion for summary judgment on Whitall’s three Elder Abuse claims. 3 4. Intentional Infliction of Emotional Distress 4 Under California law, a plaintiff must prove the following elements to succeed on a 5 claim for intentional infliction of emotional distress (“IIED”): (1) extreme and outrageous 6 conduct by the defendant with the intention of causing, or reckless disregard of the 7 probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme 8 emotional distress; and (3) actual and proximate causation of the emotional distress by the 9 defendant's outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009); 10 see also Cochran v. Cochran, 65 Cal. App. 4th 488, 494 (1998). California courts have set 11 a “high bar” for the second element: “Severe emotional distress” means “emotional 12 distress of such substantial quality or enduring quality that no reasonable [person] in 13 civilized society should be expected to endure it.” Kelley v. The Conco Companies, 196 14 Cal. App. 4th 191, 215–16 (2011) (citation omitted). 15 Defendants argue that Whitall’s IIED claim fails as a matter of law because he has 16 not set forth facts to establish that he suffered “severe or extreme emotional distress” 17 following the alleged attack. Mot. at 8. Specifically, Defendants contend that Whitall’s 18 allegations that he suffered from “post-traumatic stress disorder, nightmares, exacerbated 19 depression, exacerbated anxiety, fearfulness, and isolation,” see Second Am. Compl. at 23, 20 are the “types of conclusory statements lack[ing] specific facts to show their nature and 21 extent” that courts have rejected. Mot. at 7–8 (quoting Nelson v. County of Sacramento, 22 926 F. Supp. 2d 1159, 1163 (E.D. Cal. 2013)).5 23 Whitall argues that the records produced do show the severity of his emotional 24 distress. Resp. at 7. According to his November 2017 medical records, Whitall had 25 5 Defendants appear to also raise questions about whether Whitall was “actually 26 experiencing” PTSD, anxiety, and depression. Reply at 5. But that issue is a credibility determination for the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 27 The question for the Court is whether, drawing all reasonable inferences in Whitall’s 1 “pressing” PTSD symptoms and nightmares about the February 2017 incident. See 2 Killeen Decl. Ex. E (dkt. 143-7). At that time, Whitall also reported that “situations with 3 current guards” cause him “extreme anxiety and he becomes anxious that the [February 4 2017] incident will repeat itself.” Id. Whitall further alleged that the incident exacerbated 5 his depression and anxiety. Second Am. Compl. at 39. 6 A reasonable jury could conclude from Whitall’s allegations that he suffered severe 7 emotional distress as a result of the February 2017 incident. Whitall’s evidence of 8 emotional distress goes “beyond the vague assertions of worry, anxiety and concern that 9 California courts have found insufficient to constitute emotional distress.” Jaramillo v. 10 City of San Mateo, 76 F. Supp. 3d 905, 926 (N.D. Cal. 2014). Unlike the plaintiff in 11 Nelson, whose allegations of emotional distress were purely conclusory—including “pain, 12 grief, shame, humiliation, embarrassment, anger,” 926 F. Supp. 2d at 1163—Whitall 13 includes specific facts related to the nature and extent of his alleged emotional distress. He 14 alleges that specific situations with guards in prison cause him “extreme anxiety” because 15 of fears the February 2017 incident will happen again. Killeen Decl. Ex. E (dkt. 143-7). 16 He provides evidence of the nature of the nightmares he is experiencing—namely, that 17 they are about the February 2017 incident. Id. And he asserts evidence about the extent of 18 his PTSD symptoms, as well as the extent of his anxiety and depression. Id. (PTSD 19 symptoms are “pressing”); Second Am. Compl. at 39 (anxiety and depression are 20 “exacerbated”). 21 Very similar allegations were found sufficient to survive a motion for summary 22 judgment on an IIED claim in Jaramillo, 76 F. Supp. 3d at 926. There, the plaintiff alleged 23 that he was “traumatized and terrified of the police officers” as a result of the alleged force 24 they exercised on him, and that he continued to be “traumatized by this incident and fearful 25 of police.” Id. The court determined that a jury could conclude from these allegations that 26 Jaramillo suffered severe emotional distress, and thus that there was a disputed issue of 27 material fact. The Court concludes the same for Whitall’s allegations here and denies B. Defendant Gudino 1 Defendant Gudino also moves for summary judgment as to all of Whitall’s claims 2 against him on qualified immunity grounds. Mot. at 8–9. Citing his deposition testimony, 3 Defendant Gudino argues that he has no knowledge of, and there is “no evidence” that he 4 had “any involvement in,” the February 2017 incident and therefore he could not have 5 violated clearly established law. Id.; see also Gudino Depo. (dkt. 137-1, Ex. B) at 71:5–9 6 (“Q. Do you recall the incident on that day? A. I don't. Q. Do you have any knowledge 7 about what happened on that day? A. No, I don’t.”). 8 Whitall claims that there is a disputed issue of material fact as to whether Defendant 9 Gudino was actually involved in the incident. Resp. at 8. He cites his own deposition 10 testimony, in which he recalls Defendant Gudino striking him in the face during the 11 alleged attack, see Killeen Decl. Ex. F (dkt. 143-8) at 54:12–22, as well as the SVSP 12 Holding Cell Log, which shows that Gudino was watching over Whitall in the holding cell 13 just minutes before the attack allegedly occurred, see Killeen Decl. Ex. A (dkt. 143-3). 14 The Court finds Gudino’s presence during the attack to be a disputed issue of 15 material fact that should be left to the jury. The Holding Cell Log shows that Defendant 16 Gudino placed Whitall in the holding cell at 8:05 and checked on him at least three 17 additional times—at 8:20, 8:25, and 8:35. See Killeen Decl. Ex. A (dkt. 143-3). Just three 18 minutes later, at 8:38, Defendant Ramirez indicates that Whitall was released from the 19 holding cell, which is when Whitall says the attack occurred. Id. It would be perfectly 20 legitimate for the jury to infer from those facts that Defendant Gudino was still there, three 21 minutes after he last filled out the log, and participated in the attack with all the other 22 Defendants at the holding cell. It would also be perfectly legitimate for the jury to 23 conclude that in those three minutes, Gudino left and did not participate in the attack. To 24 determine which of these inferences is correct would require the Court to engage in a 25 credibility determination between Whitall’s recollection and Gudino’s, which is the 26 function of the jury, not the Court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 27 (1986). Therefore, because “conflicting inferences may be drawn from the facts, . . . the 1 || case must go to the jury.” Santos v. Gates, 287 F.3d 846, 851 (9th Cir. 2002) (quoting 2 || Pierce v. Multnomah Cty., 76 F.3d 1032, 1037 (9th Cir.1996)). 3 Defendants are right that Whitall has minimal evidence of Gudino’s alleged 4 || participation in the attack, but the conflicting deposition testimony, in addition to the 5 || Holding Cell Log, sufficiently raises a fact question that makes summary judgment 6 || inappropriate. The Court therefore denies Defendant Guidino’s motion for summary 7 || judgment on the rest of Whitall’s claims against him. 8 || IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Defendants’ motion for summary 10 || judgment on Whitall’s state law claims for: (1) cruel and unusual punishment; and (2) use 11 || of unnecessary force. The Court DENIES Defendants’ motion as to Whitall’s state law 12 || claims for: (1) dependent adult abuse; (2) battery against a dependent adult; (3) dependent 13 adult and endangerment; and (4) intentional infliction of emotional distress, and DENIES C 14 || Defendant Gudino’s motion for summary judgment on the rest of Whitall’s claims against 2 15 |) him. 16 Accordingly, Whitall’s lawsuit will now proceed against Defendants Gutierrez, 5 17 || Gudino, Aboytes, Vasquez, Ramirez, and Caballero on the following claims: (1) Eighth 18 || Amendment; (2) battery; (3) dependent adult abuse; (4) battery against a dependent adult; 19 || and (5) dependent adult and endangerment; (6) intentional infliction of emotional distress; 20 || and (7) the Bane Civil Rights Act. 21 22 IT IS SO ORDERED. Spa 23 Dated: October 24, 2023 Zz CHARLES R. BREYER 24 United States District Judge 25 26 27 28