1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERALD WILSON, Case No.: 3:16-cv-2100-BTM-MSB CDCR #B-93800, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING IN PART AND 14 DENYING IN PART DEFENDANTS’ A. CUEVAS; M. MOYA; 15 MOTION FOR SUMMARY J. OLIVO; M.A. MENDOZA, JUDGMENT PURSUANT TO 16 Defendants. Fed. R. Civ. P. 56; AND 17 (2) ISSUING ORDER TO SHOW 18 CAUSE WHY CLAIMS AGAINST 19 MOYA SHOULD NOT BE DISMISSED PURSUANT TO FRCP 20 4(m) 21 [ECF No. 62] 22 23 24 Currently before the Court is a Motion for Summary Judgment filed pursuant to 25 Fed. R. Civ. P. 56 by Defendants Cuevas, Olivo, and Mendoza (ECF No. 62). After he 26 was notified of the requirements for opposing summary pursuant to Rand v. Rowland, 27 154 F.3d 952, 962-63 (9th Cir. 1998) (ECF No. 64), and granted extensions of time (ECF 28 Nos. 79, 92), Plaintiff filed his Opposition (“Opp’n”) (ECF No. 95). 1 For the reasons explained, the Court GRANTS IN PART and DENIES IN PART 2 Defendants’ Motion for Summary Judgment (ECF No. 62). The Court also issues an 3 order to show cause no later than thirty (30) days from the date this Order is filed why the 4 claims against Defendant Moya should not be dismissed for want of prosecution pursuant 5 to Fed.R.Civ.P. 4(m). 6 I. Procedural Background 7 On August 17, 2016, Plaintiff filed a Complaint (“Compl.”) pursuant to 42 U.S.C. 8 1983 alleging that Correctional Officers at Calipatria State Prison (“CAL”) violated his 9 First and Eighth Amendment rights when he was housed there in 2016. On March 3, 10 2017, the Court granted Plaintiff leave to proceed in forma pauperis, screened his 11 Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and directed the U.S. 12 Marshal to effect service on his behalf. (See ECF No. 8.) 13 On June 2, 2017, Defendants brought a Motion to Dismiss Plaintiff’s Complaint. 14 (See ECF No. 20.) They later filed a Motion for Partial Summary Judgment on July 19, 15 2017. (See ECF No. 21.) On January 16, 2018, the Court granted Defendants’ Motion 16 for Partial Summary Judgment and found that Plaintiff had failed to properly exhaust his 17 administrative remedies as to his Eighth Amendment inadequate medical care claim as 18 required by 42 U.S.C. § 1997e. (See ECF No. 29.) However, the Court denied 19 Defendants’ Motion to Dismiss Plaintiff’s Complaint for failing to state a claim as to 20 Plaintiff’s First Amendment retaliation claim and Eighth Amendment excessive force 21 claim. (Id.) Defendants filed their Answer to Plaintiff’s Complaint on February 14, 22 2018. (See ECF No. 31.) Defendants have now filed a Motion for Summary Judgment 23 pursuant to Fed. R. Civ. P. 56. (See ECF No. 62.) 24 II. Plaintiff’s Claims 25 Plaintiff was housed at CAL on January 27, 2016. (See Compl. at 12.) At noon on 26 that day, Plaintiff claims he went to the “Facility ‘C’ program office” to inquire “about a 27 young Black inmate” that an officer had taken to the program officer earlier that day. (Id. 28 at 13.) Plaintiff alleges Defendant Cuevas told Plaintiff that it was “none of [Plaintiff’s] 1 business” and he should leave the office. (Id.) As Plaintiff began to leave, he claims 2 Cuevas stated “that [Plaintiff] walks around here as if [Plaintiff] owns the place.” (Id.) 3 Plaintiff alleges he said to Cuevas “why the disrespect?” (Id.) Cuevas responded by 4 stating “you are nothing but a snitch and an s-building telling [expletive].” (Id.) He 5 further claims Cuevas stated that Plaintiff “only writes officers up.” (Id.) Plaintiff 6 responded with an expletive and Cuevas allegedly asked Plaintiff “what was [he] going to 7 do about it?” (Id.) 8 Plaintiff alleges that this verbal exchange was witnessed by “both staff and 9 inmates,” including a sergeant who handcuffed Plaintiff. (Id.) Plaintiff was taken to a 10 holding cell inside the program office. (See id.) While Plaintiff was in the holding cell, a 11 sergeant and lieutenant came to question him about the incident. (See id. at 13-14.) 12 Plaintiff claims he was told that they “would talk to Officer Cuevas about his conduct.” 13 (Id. at 14.) Plaintiff was released back to his housing unit. (Id.) 14 Later that evening, Plaintiff was leaving the “chow hall” when he saw Cuevas. 15 (Id.) Plaintiff asked Cuevas why he called Plaintiff a “snitch” earlier that day. (Id.) 16 Plaintiff alleges Cuevas responded, “because I can” and asked Plaintiff “are you getting 17 up on me?” Plaintiff claims Cuevas then kicked his right ankle causing Plaintiff “to lose 18 [his] cane and balance.” (Id.) Plaintiff fell backward and “swung both of [his] arms out 19 trying to grab Cuevas” so he would not fall on his back. (Id.) However, he claims that 20 Defendant Olivo grabbed his arms and kicked both of his legs “away from [Plaintiff],” 21 which caused Plaintiff to fall on his back onto “the asphalt knocking the wind” out of 22 him. (Id.) Plaintiff claims he could not move after falling on the ground. (See id.) 23 Plaintiff was turned over onto his stomach by correctional officers and Cuevas placed his 24 knee on Plaintiff’s “left side” and back. (Id.) Plaintiff alleges Defendant Moya “came 25 over” and used his baton to “jab” Plaintiff in his left side “for no reason.” (Id. at 14-15.) 26 Cuevas continued to place his knee on Plaintiff’s back and purposefully bent 27 Plaintiff’s “left fingers back.” (Id. at 15.) At the same time, he claims Cuevas was 28 “yelling out loud stop resisting” to have “justification for trying to break [Plaintiff’s] 1 fingers.” (Id.) Defendant Mendoza was instructed by Moya to escort Plaintiff to the 2 “Facility ‘C’ Program Office.” (Id.) As he was pulled up from the ground, Plaintiff 3 asked Mendoza for his cane because he was in pain. (See id.) However, Mendoza 4 ignored his request. (Id.) 5 Plaintiff informed the sergeant in administrative segregation (“ad-seg”) that he had 6 been subjected to excessive force and “therefore, a video was made.” (Id.) Plaintiff also 7 filed an inmate grievance. (Id.) 8 Plaintiff was engaged in litigation “against institutional head of [CSP]” for 9 violating his First Amendment rights for “redress petition of grievance against prison 10 officials” in the Eastern District of California in November of 2015. (Id. at 16.) Plaintiff 11 alleges that the actions of Cuevas in January of 2016 were in retaliation for Plaintiff filing 12 the previous lawsuit in 2015. (See id.) 13 Plaintiff seeks various forms of injunctive relief as well as compensatory and 14 punitive damages. (Id. at 19-20.) 15 III. Defendant’s Claims 16 Correctional Officers Cuevas, Olivo, and Mendoza “were all working on Facility 17 C, performing their usual duties outside the dining hall on the evening of January 27, 18 2016.” (See Defs.’ P&As in Supp. of Mot. for Summ. J., ECF No. 62-1 [hereafter 19 “Defs.’ P&As] at 7.) Cuevas was “approached” by Plaintiff who “began to mumble 20 words that Cuevas was not able to hear.” (Id.) In response, Cuevas “leaned forward to 21 try and hear Plaintiff, but still could not understand him.” (Id.) Cuevas told Plaintiff to 22 “keep moving towards his housing unit” but Plaintiff “ignored Cuevas, refused to move, 23 and continued to mumble.” (Id. at 7-8.) Instead, Plaintiff “suddenly” hit Cuevas “in the 24 face, hitting Cuevas on his lower lip and jaw.” (Id. at 8.) 25 Defendant Olivo “grabbed Plaintiff with both hands” and took him “to the ground 26 by sweeping Plaintiff’s right leg with Olivo’s left leg. (Id.) Plaintiff “swung both fists” 27 at Olivo and “Cuevas then assisted Olivo in gaining control of Plaintiff.” (Id.) While 28 Plaintiff was on the ground he was “being combative and resisting Olivo’s orders to 1 comply by moving his arms around and kicking.” (Id.) 2 Cuevas attempted to control Plaintiff by “plac[ing] his right knee over Plaintiff’s 3 torso” as Plaintiff “posed a threat to Olivo.” (Id.) Cueveas then “went into a mount 4 position by placing both of his legs over Plaintiff’s lower back once Olivo and Cuevas 5 were able to gain some compliance from Plaintiff.” (Id.) 6 Cuevas then “grabbed Plaintiff’s left wrist and Olivo had control of Plaintiff’s left 7 hand.” (Id.) Cuevas then “released Plaintiff’s left wrist and took control of Plaintiff’s 8 right hand and pulled it towards the middle of Plaintiff’s lower back.” (Id.) Plaintiff’s 9 wrists were “placed” in “restraints” by Cuevas. (Id.) 10 After Plaintiff was restrained, Cuevas “walked away” as Defendant Mendoza “took 11 custody of Plaintiff and escorted him to the Facility ‘C’ Program Office.” (Id.) Cuevas 12 “reported to the prison’s medical clinic for medical attention” as he “sustained serious 13 injuries from this incident.” (Id.) Specifically, Cuevas’s “right pinky finger was 14 dislocated, he suffered a mild concussion, and he tore his right hip labrum” which 15 required surgery to repair. (Id. at 8-9.) Cuevas had surgery “for a tear to his right hip 16 labrum in April, 2014.” (Id.) Cuevas indicates that he “did not kick Plaintiff’s cane out 17 from under him because that was physically impossible.” (Id.) Following the incident 18 with Plaintiff, Cuevas “was unable to return to work” at CAL and “went on worker’s 19 compensation” until he was “rehired by the CDCR at Richard J. Donovan Correctional 20 Facility in April 2018.” (Id.) 21 Plaintiff was later “criminally charged with battery by a prisoner on a non-prisoner 22 under California Penal Code section 4501.5. (Id. at 10.) Plaintiff was “found guilty” in 23 Imperial County Superior Court on July 20, 2018. (Id.) Plaintiff was given a “three-year 24 sentence.” (Id.) At trial, both Cuevas and Olivo testified that “Plaintiff punched Cuevas 25 in the face.” (Id.) Plaintiff “admitted at this trial that he struggled and resisted Cuevas 26 and Olivo when Plaintiff was on the ground because he was ‘trying to defend’” himself. 27 (Id.) 28 / / / 1 IV. Defendant’s Motion for Summary Judgment 2 A. Standard of Review 3 Summary judgment is appropriate when the moving party “shows that there is no 4 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 5 of law.” Fed. R. Civ. P. 56(a). The “purpose of summary judgment is to ‘pierce the 6 pleadings and to assess the proof in order to see whether there is a genuine need for 7 trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 8 (citations omitted). 9 As the moving parties, Defendants “initially bears the burden of proving the 10 absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144 v. 11 Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 12 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). While Plaintiff bears 13 the burden of proof at trial, Defendants “need only prove that there is an absence of 14 evidence to support [Plaintiff’s] case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 15 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be 16 entered, after adequate time for discovery and upon motion, against a party who fails to 17 make a showing sufficient to establish the existence of an element essential to that party’s 18 case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. 19 at 322. “[A] complete failure of proof concerning an essential element of the nonmoving 20 party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, 21 summary judgment should be granted, “so long as whatever is before the district court 22 demonstrates that the standard for entry of summary judgment ... is satisfied.” Id. at 323. 23 If Defendants meet their initial responsibility, the burden then shifts to Plaintiff to 24 establish that a genuine dispute as to any material fact actually does exist. Matsushita 25 Elec. Indus. Co., 475 U.S. at 586. In attempting to establish the existence of this factual 26 dispute, Plaintiff may not rely upon the allegations or denials of his pleadings, but is 27 instead required to tender evidence of specific facts in the form of affidavits, and/or 28 admissible discovery material, to support his contention that the dispute exists. See Fed. 1 R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. “A [p]laintiff’s verified complaint 2 may be considered as an affidavit in opposition to summary judgment if it is based on 3 personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 4 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). 5 Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact 6 that might affect the outcome of his suit under the governing law, see Anderson v. Liberty 7 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors 8 Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 9 evidence is such that a reasonable jury could return a verdict for him. See Wool v. 10 Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 11 Finally, district courts must “construe liberally motion papers and pleadings filed 12 by pro se inmates and ... avoid applying summary judgment rules strictly.” Thomas v. 13 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, if Plaintiff “fails to properly 14 support an assertion of fact or fails to properly address [Defendants’] assertion of fact, as 15 required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the 16 motion ....” Fed. R. Civ. P. 56(e)(2). Nor may the Court permit Plaintiff, as the opposing 17 party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 18 457, 459 (9th Cir. 1986). A “motion for summary judgment may not be defeated ... by 19 evidence that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477 20 U.S. at 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006); 21 Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“‘[M]ere allegation and 22 speculation do not create a factual dispute for purposes of summary judgment.’”) 23 (quoting Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996)) (brackets in 24 original)). 25 B. Defendant’s Arguments 26 Defendants seek summary judgment as to Plaintiff’s First and Eighth Amendment 27 claims on the grounds that: (1) no genuine issue of material fact shows that they 28 retaliated against Plaintiff or used excessive force against him; (2) his claims are barred 1 by Heck v. Humphrey, 512 U.S. 477 (1994) and (3) they are entitled to qualified 2 immunity. (See Defs.” P&As at 11-23.) 3 C. Plaintiff’s Opposition 4 Plaintiff contends Defendants are not entitled to summary judgment because their 5 Motion has “failed to meet their burden of demonstrating that there is no dispute as to any 6 material fact, and because the facts set forth in Plaintiff’s Separate Statement of Material 7 Facts and the attached countervailing evidences show that Defendants’ violated 8 Plaintiff’s clearly established constitutional rights.” (Pl.’s Opp’n, ECF No. 95 at 20.) 9 D. Eighth Amendment Excessive Force claims 10 In general, an Eighth Amendment violation occurs only when an inmate is 11 subjected to the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 12 312, 319 (1986); Jeffers v. Gomez, 267 F.3d 895, 900 (9th Cir. 2001). With respect to 13 Plaintiff’s claims that Defendants used excessive force against him, the “core judicial 14 inquiry” is “whether force was applied in a good faith effort to maintain or restore 15 discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson 16 v. McMillian, 503 U.S. 1, 6 (1992) (extending Whitley’s Eighth Amendment analysis 17 from prison riots to “whenever guards use force to keep order.”); Wilkins v. Gaddy, 559 18 U.S. 34, 40 (2010). In making this determination, courts consider factors such as: (1) 19 extent of the injury, (2) need to use the force, (3) relationship between the need and the 20 amount of force used, (4) the threat “reasonably perceived” by the officials, and (5) “any 21 efforts made to temper the severity” of the force. Hudson, 503 U.S. at 7 (citations 22 omitted). 23 Ultimately, however, Plaintiff must show more than “merely objectively 24 unreasonable force,” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002), in order to 25 prove that Defendants acted in bad faith with the intent to harm him. Wilkins, 559 U.S. at 26 37; Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 795 (9th Cir. 2018); Hoard v. 27 Hartman, 904 F.3d 780, 790 (9th Cir. 2018); Jeffers v. Gomez, 267 F.3d 895, 912 (9th 28 Cir. 2001) (affirming summary judgment on behalf of correctional officers because there 1 was an “absence of evidence showing that either officer acted purposely to injure” and 2 the officers’ actions did not suggest “malice or sadism or otherwise create an inference of 3 impermissible motive.”). 4 Defendants maintain that “Cuevas and Olivo simply protected themselves, and 5 acted to ensure each other’s safety, and the safety of other inmates on January 27, 2016, 6 in compliance with CDCR’s safety protocols and use-of-force policies.” (Defs.” P&As at 7 14.) The force at issue in this matter occurred after a physical altercation between 8 Plaintiff and Cuevas. Cuevas attests that “Plaintiff swung his right fist towards the left 9 side of [his] face, striking [him] in [his] lower lip and jaw area.” (Cuevas Decl. at ¶ 2.) 10 Plaintiff disputes that he struck Cuevas and instead maintains that Cuevas kicked his leg 11 causing Plaintiff to “lose his balance and started falling back.” (Pl.’s Decl. at 5.) 12 Plaintiff attests that he “threw both of [his] hands out trying to catch a hold of [Cuevas]” 13 so he would “not fall on [his] back to the asphalt.” (Id.) 14 Following this incident, Olivo declares that he “immediately grabbed Plaintiff’s 15 upper torso area with both hands.” (Olivo Decl. at ¶ 3.) He then “simultaneously swept 16 Plaintiff’s right leg with [his] leg, causing Plaintiff to fall to the ground.” (Id.) Plaintiff 17 does not dispute this set of facts. Plaintiff attests that Olivo “kick[ed] both of [his] legs 18 from under Plaintiff.” (Pl.’s Decl. at 5.) However, Plaintiff and Olivo present different 19 facts as to what happened after Plaintiff fell to the ground. Olivo declares that “as 20 Plaintiff was falling to the ground, Plaintiff spun around, broke from [his] grasp, and 21 landed on his stomach.” (Olivo Decl. at ¶ 3.) Olivo further attests that “Plaintiff 22 attempted to hit [him] by swinging both fists at [his] torso” but Plaintiff “did not make 23 contact.” (Id.) Plaintiff, however, declares that he “fell on [his] back on to the asphalt 24 knocking the air out of Plaintiff.” (Pl.’s Decl. at 6.) Plaintiff then states that at some 25 point, unnamed individuals “turn[ed] Plaintiff over onto Plaintiff’s stomach.” (Id.) 26 Cuevas maintains that Plaintiff was “on the ground, resisting Correctional Officer 27 Olivo’s order to comply by moving his arms around and kicking.” (Cuevas Decl. at ¶ 4.) 28 He declares that he “placed [his] right knee over Plaintiff’s torso to control his 1 movement” and “went into a mount position by placing both of his legs over Plaintiff’s 2 lower back area.” (Id. at ¶ 5.) Plaintiff’s version of what happened at this point is 3 virtually identical to Cuevas’s representation. Plaintiff declares that after he was lying on 4 the ground, Cuevas put his knee “in the lower part of Plaintiff’s back” and then 5 “mount[ed] Plaintiff by putting his full body weight on top of Plaintiff.” (Pl.’s Decl. at 6 6.) He further claims as he was lying on the floor with Cuevas on top of him, Defendant 7 Moya1 “jab[ed] Plaintiff in the lower left side of Plaintiff’s back.” (Id.) 8 Cuevas declares he then “grabbed Plaintiff’s left wrist and noticed Correctional 9 Officer Olivo had control of Plaintiff’s left hand.” (Cuevas Decl. at ¶ 6.) Cuevas then 10 “released Plaintiff’s left wrist and took control of Plaintiff’s right hand and pulled it 11 towards the middle of his lower back.” (Id.) Cuevas attests that he “retrieved [his] state- 12 issued handcuffs and placed both of Plaintiff’s wrists in restraints” and he then “stood up 13 and walked away as Sergeant Moya maintained control of Plaintiff.” (Id. at ¶¶ 6-7.) 14 Plaintiff, however, attests that Cuevas did not place handcuffs on his wrists 15 immediately after he was on Plaintiff’s back but instead “started to bend Plaintiff’s 16 fingers on Plaintiff’s left hand backward in a maliciously and sadistically manner to try 17 and break Plaintiff’s fingers.” (Pl.s Decl. at 7.) Plaintiff claims Defendant Moya told 18 Defendant Mendoza to “escort Plaintiff to the facility “C” program office.” (Id.) 19 1. Defendant Mendoza 20 As an initial matter, the Court finds that Defendant Mendoza is entitled to 21 summary judgment as to Plaintiff’s Eighth Amendment excessive force claims. In his 22 deposition, Plaintiff testifies that he did not “see [Mendoza] use any force.” (Defs.’ 23 P&As at 62-1, Ex. A, Pl.’s Depo. at 76:4-6.) Instead, Plaintiff admits the “only thing 24 [Mendoza] did was he refused to give me my cane to walk to the program office.” (Id. at 25 76:6-8). Plaintiff raised this claim as an Eighth Amendment deliberate indifference to a 26 27 28 1 serious medical need claim in his Complaint rather than an Eighth Amendment excessive 2 force claim. (See Pl.’s Compl. at 15.) On January 16, 2018, the Court granted 3 Defendants’ Motion for Partial Summary Judgment as to Plaintiff’s Eighth Amendment 4 deliberate indifference to serious medical needs claim for failing to exhaust his 5 administrative remedies pursuant to 42 U.S.C. § 1997e(a). (See Jan. 16, 2018 Order, 6 ECF No. 29 at 16.) 7 Therefore, Defendant Mendoza’s Motion for Summary Judgment as to Plaintiff’s 8 Eighth Amendment excessive force claim is GRANTED. 9 2. Remaining Defendants 10 a. Extent of Injury 11 The Supreme Court has made clear that the Eighth Amendment may be violated by 12 the use of excessive force against a prison inmate “‘[even] when the inmate does not 13 suffer serious injury.’” Wilkins, 559 U.S. at 34 (2010) (quoting Hudson, 503 U.S. at 4). 14 While the extent of an inmate’s injury is relevant to the Eighth Amendment inquiry, 15 “[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately 16 counts.” Id. at 38. 17 At the same time: 18 [N]ot “every malevolent touch by a prison guard gives rise to a federal cause of action.” [Hudson,] 503 U.S. at 9[]. “The Eighth Amendment’s prohibition of 19 ‘cruel and unusual’ punishments necessarily excludes from constitutional 20 recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Ibid. (some internal quotation 21 marks omitted). An inmate who complains of a “push or shove” that causes no 22 discernible injury almost certainly fails to state a valid excessive force claim. Ibid. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). 23
24 Wilkins, 559 U.S. at 38; Hudson, 503 U.S. at 7-9; Martinez v. Stanford, 323 F.3d 1178, 25 1184 (9th Cir. 2003). 26 Plaintiff maintains that he has “suffered a life lasting injury that cannot be 27 classified as ‘trivial.’” (Pl.’s Opp’n at 45.) Plaintiff claims to have a “mobility 28 impairment” that he will “have to endure for the rest of [his] life” as a result of this 1 incident. (Id.) Defendants do not point to any evidence in the record to dispute 2 Plaintiff’s claims that he suffered more than de minimis injuries. This factor weighs in 3 favor of Plaintiff. 4 b. Need for Application of Force 5 It is undisputed that there was a physical altercation between Plaintiff and Cuevas 6 prior to the use of force. While Plaintiff attempts to characterize this altercation as 7 accidental, it is also undisputed that he was convicted of “Battery by Prisoner on Non- 8 Prisoner” by a jury and sentenced to three years. (See Defs. P&As, Ex. B, Felony 9 Abstract of Judgment dated Sept. 5, 2018.) These facts support a finding that the need 10 for some use of force was necessary following the physical altercation between Plaintiff 11 and Cuevas. 12 c. Relationship Between Need for Force and Force Used 13 “Force does not amount to a constitutional violation . . . if it is applied in a good 14 faith effort to restore discipline and order and not ‘maliciously and sadistically for the 15 very purpose of causing harm.’” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) 16 (quoting Whitley, 475 U.S. at 320-21). Here, neither party disputes that Olivo used his 17 legs to cause Plaintiff to fall to the ground. (See Olivo Decl. at ¶ 3; Pl.’s Compl. at 14.) 18 However, Plaintiff does not provide any evidence or point to any evidence in the record 19 that would demonstrate that Olivo’s actions were anything other than an attempt to 20 restore discipline following the physical altercation between Plaintiff and Cuevas. Thus, 21 the Court finds that Plaintiff fails to demonstrate that Olivo had malicious or sadistic 22 intent when he used force against Plaintiff. See Furnace v. Sullivan, 705 F.3d 1021, 1029 23 n. 4 (9th Cir. 2013) (noting the “spontaneous use of force can be necessary . . . in 24 response to a [reasonably] perceived danger or threat.”). 25 However, as to Cuevas, Plaintiff claims that he was “on [his] stomach in a prone 26 position when [Cuevas] came over” and “put all his 230 pounds on top of Plaintiff and 27 began to try and break Plaintiff’s fingers.” (Pl.’s Opp’n at 47.) Cuevas alleges that he 28 1 only grabbed Plaintiff’s hand in order to place him in wrist restraints. (See Cuevas Decl. 2 at ¶ 6.) 3 While a reasonable jury could conclude that Cuevas’s claim that the amount of 4 force he used was appropriately tempered and only the amount necessary under the 5 circumstances for him to maintain or restore discipline, see Hudson, 503 U.S. at 7, they 6 could also reasonably find, based on Plaintiff’s allegations regarding the incident, that 7 Cuevas acted “maliciously and sadistically for the very purpose of causing harm.” 8 Hudson, 503 U.S. at 6. 9 Accordingly, while this factor weighs in favor of Defendant Olivo but there is a 10 material dispute as to whether Cuevas used the appropriate amount of force and whether 11 his use of force rose the level of being malicious or sadistic. 12 d. Threat Perceived by Defendants 13 As stated previously, there is no dispute that there was a physical altercation 14 between Plaintiff and Cuevas that initiated the series of events that are alleged in this 15 action. While Plaintiff claims that he accidentally came into contact with Cuevas, he was 16 convicted of battery on Cuevas by a jury. So as to the initial response by Oliva to take 17 Plaintiff to the ground, this action can be viewed as a reasonable response that was 18 necessary because Plaintiff arguably presented a real security risk. However, there is a 19 dispute as to whether Plaintiff complied with commands after he was on the ground and 20 whether the use of force after Plaintiff was prone on the ground was excessive. 21 Defendants maintain Plaintiff was “being combative and resisting Olivo’s order to 22 comply by moving his arms around and kicking.” (Defs. Sep. Stmt. Undisp. Facts, No. 23 11 citing Cuevas Decl. at ¶4; Olivo Decl. at ¶ 4.) Plaintiff, on the other hand, claims he 24 was in a “non threatening position on my stomach prone position.” (Pl.’s Sep. Stmt. 25 Undisp. Facts, No. 33.) 26 The Court may not resolve disputed issues of material fact by crediting one party’s 27 version of events and ignoring another. Wall v. County of Orange, 364 F.3d 1107, 1111 28 (9th Cir. 2004) (“By deciding to rely on the defendants’ statement of fact [in deciding a 1 summary judgment motion], the district court became a jury.”); see also Smith v. City of 2 Hemet, 396 F.3d 689, 701 (9th Cir. 2005) (“Because [the excessive force inquiry] nearly 3 always requires a jury to sift through factual contentions, and to draw inferences 4 therefrom, we have held on many occasions that summary judgment or judgment as a 5 matter of law in excessive force cases should be granted sparingly.” (citing Santos v. 6 Gates, 287 F.3d 846, 853 (9th Cir. 2002)). 7 e. Attempts to Temper the Severity of the Force 8 Plaintiff argues that force used by Defendants was excessive and they “decided to 9 prolong and therefore, increase the severity of the force.” (Pl.’s Opp’n at 53.) 10 Defendants maintain that the Plaintiff provoked the entire incident and continued to 11 refuse to comply with their orders which required the amount of force that was used. 12 (Cuevas Decl. at ¶ 5.) The allegations regarding the purported prolonging use of force 13 involve the allegations against Cuevas. In his Opposition, Plaintiff argues that the force 14 used by Cuevas after Plaintiff was lying prone on the ground demonstrates that Cuevas 15 did nothing to temper the severity of the force used. (Pl.’s Opp’n at 53.) Plaintiff does 16 not allege or argue that Olivo used any force after he purportedly was lying prone on the 17 floor. 18 Therefore, as to the alleged actions taken by Cuevas, the Court finds that there is a 19 disputed fact as to whether Cuevas tempered his response when using force but there is 20 no disputed fact as to Olivo. 21 f. Conclusion 22 Plaintiff fails to raise a triable issue of material fact as to whether Olivo used 23 “malicious and sadistic force” against him in violation of the Eighth Amendment. 24 Clement, 298 F.3d at 903. Moreover, in analyzing Plaintiff’s claims under the Hudson 25 factors, the Court finds that most of these factors weigh heavily in favor of Olivo. 26 Accordingly, the Court GRANTS Defendant Olivo’s Motion for Summary Judgment as 27 to Plaintiff’s Eighth Amendment excessive force claims. However, the Court finds that 28 the Hudson factors as to the claims against Cuevas weigh heavily in favor of Plaintiff. 1 Therefore, the Court finds that there is a triable issue of material fact as to Plaintiff’s 2 Eighth Amendment excessive force claims against Defendant Cuevas and his Motion is 3 DENIED. 4 E. Retaliation Claim 5 Defendants’ seek summary judgment as to Plaintiff’s First Amendment retaliation 6 claim. (See Defs.’ P&As at 15-16.) A retaliation claim has five elements. Brodheim v. 7 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). First, Plaintiff must allege that the retaliated- 8 against conduct is protected. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).2 9 Second, Plaintiff must allege Defendants took adverse action against him.3 Rhodes v. 10 Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Third, Plaintiff must allege a causal 11 connection between the adverse action and the protected conduct.4 Watison, 668 F.3d at 12 1114. Fourth, Plaintiff must allege the “official’s acts would chill or silence a person of 13 ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 14 (internal quotation marks and emphasis omitted).5 Fifth, Plaintiff must allege “that the 15 prison authorities’ retaliatory action did not advance legitimate goals of the correctional 16 institution....” Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114-15. 17 / / / 18 / / / 19 / / / 20 21 2 The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th 22 Cir. 2005).
23 3 The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at 1270. 24
25 4 Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal. Watison, 26 668 F.3d at 1114 (citing Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”)). 27 5 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some 28 1 In his Complaint, Plaintiff alleges Defendants retaliated against him because he 2 was engaged in litigation “against institutional head of [CSP]” for violating his First 3 Amendment rights for “redress petition of grievance against prison officials” in the 4 Eastern District of California in November of 2015. (Compl. at 16.) Plaintiff alleges that 5 the actions of Cuevas in January of 2016 were in retaliation for Plaintiff filing the 6 previous lawsuit in 2015. (See id.) 7 Defendants argue that they “never retaliated against Plaintiff for his exercise of 8 free speech” and they had “no knowledge that Plaintiff was suing the warden or any other 9 staff member of the California Department of Corrections and Rehabilitation.” (Defs.’ 10 P&As at 16; Defs.’ Sep. Stmt. Undisp. Facts No. 39 citing Cuevas Decl. at ¶ 12; Olivo 11 Decl. at ¶ 10; Mendoza Decl. ¶ 8.) Plaintiff points to no evidence in the record to 12 support his claim that Defendants were aware that he was engaged in litigation. 13 However, he does state that prior to the incident involving force, he attempted to address 14 an issue with Cuevas regarding Plaintiff’s concern with Cuevas’s interaction with a 15 younger inmate. (See Pl. Decl. at 4.) Plaintiff maintains that Cuevas was disrespectful 16 towards him and when he protested, Cuevas responded “what are you going to do about 17 it, you only write stuff up.” (Id.) Cuevas then purportedly called Plaintiff an “[expletive] 18 S Building snitch.” (Id.) Plaintiff also claims that he had previously filed grievances 19 against Cuevas. (Id. at 3-4.) 20 Plaintiff must show the causal connection between the adverse action and the 21 protected conduct. Watison, 668 F.3d at 1114. At the summary judgment stage, Plaintiff 22 must offer “either direct evidence of retaliatory motive” or circumstantial evidence of 23 Defendants’ purported retaliatory motive. McCullum v. Cal. Dep’t of Corr. and Rehab., 24 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 25 2002)). In this matter, Plaintiff offers neither direct or circumstantial evidence of 26 Defendants Olivo or Mendoza’s alleged retaliatory motive. However, Plaintiff does 27 attest, through his verified Declaration, that he had filed a grievance against Cuevas prior 28 1 to the use of force incident and Cuevas told Plaintiff that he was aware that Plaintiff had 2 written grievances against prison officials. 3 Therefore, the Court GRANTS Defendant Olivo and Mendoza’s Motion for 4 Summary Judgment but DENIES Defendant Cueva’s Motion for Summary Judgment as 5 to Plaintiff’s retaliation claim. 6 E. Heck Bar 7 Defendants argue that both Plaintiff’s excessive force claims and his retaliation 8 claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994 9 In Heck, the Supreme Court held: 10 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 11 whose unlawfulness would render a conviction or sentence 12 invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by 13 executive order, declared invalid by a state tribunal authorized to 14 make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A 15 claim for damages bearing that relationship to a conviction or 16 sentence that has not been so invalidated is not cognizable under § 1983. 17 18 Id. at 486-87.
20 “Suits challenging the validity of the prisoner’s continued incarceration lie within 21 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 22 prisoner who is making a constitutional challenge to the conditions of his prison life, but 23 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 24 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of 25 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 26 “exclusive” means to “attack the validity of his confinement” in federal court). 27 In support of their argument, Defendants argue that a jury found that Plaintiff had 28 “battered Cuevas” and the “use of force to restrain Plaintiff was reasonable and 1 necessary.” (Defs.’ P&As at 19.) It is undisputed that “Plaintiff was criminally charged 2 with battery by a prisoner on a non-prisoner under California Penal Code section 3 4501.5.” (Defs. Sep. Stmnt. Undisp. Facts No. 42.) Plaintiff was found guilty in 2018 in 4 Imperial County Superior Court and a three-year sentence was imposed. (Id. No. 43; 5 Defs.’ P&As, Ex. B. Felony Abstract of Judgment dated Sept. 5, 2018.) Defendants 6 argue that Plaintiff’s excessive force claims are Heck barred because his criminal 7 conviction arose “out of the same facts stands and is fundamentally inconsistent with the 8 unlawful behavior for which section 1983 claims are sought, the 1983 action must be 9 dismissed.” (Id. at 19 citing Cunningham v. Gates, 312 F.3d 1148, 1153 (9th Cir. 2002) 10 (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)).) 11 However, Plaintiff is not barred from bringing this action by Heck “if the use of 12 excessive force occurred subsequent to the conduct on which his conviction was based.” 13 Smith v. City of Hemet, 394 F.3d 689, 698 (9th Cir. 2005). Here, the evidence supplied 14 by Defendants does not make clear whether Plaintiff’s criminal conviction of battery on 15 Cuevas was based on the initial interaction or the interaction that followed when Plaintiff 16 was taken to the ground by Olivo. If Plaintiff were to prevail in this action, it is not at all 17 clear that it would invalidate his conviction of battery on Cuevas. Even if Plaintiff did 18 commit a battery, that does not exclude the possibility that the force used in response to 19 this battery was excessive. Id. 20 Defendants cite to a recent unpublished Ninth Circuit opinion in which it was held 21 that a plaintiff’s First Amendment retaliation claim was barred by Heck to support their 22 argument that Plaintiff’s retaliation claim is similarly barred. (See Defs.’ P&As at 20 23 citing Moschref v. Stratton, 697 Fed.Appx. 532 (9th Cir. 2017). In Moschref, the Ninth 24 Circuit did find that the plaintiff’s retaliation claim was barred by Heck. Id. However, 25 while the facts in this unpublished opinion are not fully set forth, it appears that the 26 plaintiff in that matter was claiming that the officer who arrested him had made 27 retaliatory false statements that led to his conviction. Id. Thus, the Ninth Circuit found 28 that the plaintiff’s claims of false statements would imply the invalidity of his conviction 1 that was based on those purportedly false statements. Id. In the matter before this Court, 2 Plaintiff alleges that the amount of force used was excessive and it was used in retaliation 3 for grievances he had previously filed against Cuevas. The facts in Moschref are not at 4 all in line with the allegations in the matter before this Court. 5 Defendants also cite to another unpublished Ninth Circuit opinion in which the 6 Ninth Circuit stated “[w]e pause to note that consideration of [plaintiff’s] First 7 Amendment claim is likely barred by [Heck] because prevailing on her claim would 8 imply the invalidity of her criminal convictions arising from the same events.” (Defs.’ 9 P&As at 20 citing Smith v. Ball, 278 Fed.Appx. 739, 741.) 10 It is undisputed that Plaintiff was convicted of battery. However, if he were to 11 prevail on his retaliation claim there are no facts to show that it would imply the 12 invalidity of his conviction. Plaintiff’s claim for retaliation does not arise from the event 13 for which he was convicted of battery, it relates to the alleged excessive force purportedly 14 used in retaliation after the battery that is at issue in this matter. 15 Accordingly, Defendants Motion for Summary Judgment based on Heck grounds 16 is DENIED. 17 V. Qualified Immunity 18 Finally, Defendants move for summary judgment as to Plaintiff’s excessive force 19 claims on the ground that they are entitled to qualified immunity. (See Defs. P&As at 22- 20 24.) Because the Court has found that Defendants Olivo and Mendoza are entitled to 21 summary judgment as to all of Plaintiff’s claims, it need not reach any issues regarding 22 qualified immunity as to these Defendants. See Saucier v. Katz, 533 U.S. 194, 201 23 (2001) (“If no constitutional right would have been violated were the allegations 24 established, there is no necessity for further inquiries concerning qualified immunity.”). 25 However, the Court will determine whether Defendant Cuevas is entitled to 26 qualified immunity as to Plaintiff’s Eighth Amendment excessive force claims. 27 “Government officials enjoy qualified immunity from civil damages unless their 28 conduct violates ‘clearly established statutory or constitutional rights of which a 1 reasonable person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a 3 qualified immunity defense, the central questions for the court are: (1) whether the facts 4 alleged, taken in the light most favorable to Plaintiff, demonstrate that the Defendant’s 5 conduct violated a statutory or constitutional right; and (2) whether the right at issue was 6 “clearly established” at the time it is alleged to have been violated. Saucier v. Katz, 533 7 U.S. 194, 201 (2001). Although Saucier originally required the Court to answer these 8 questions in order, the U.S. Supreme Court has since held that “while the sequence set 9 forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” 10 Pearson v. Callahan, 555 U.S. 223, 236 (2009). 11 If the Court finds that Plaintiff’s allegations do not make out a statutory or 12 constitutional violation, “there is no necessity for further inquiries concerning qualified 13 immunity.” Saucier, 533 U.S. at 201. Similarly, if the Court determines that the right at 14 issue was not clearly established at the time of the defendant’s alleged misconduct, the 15 court may end further inquiries concerning qualified immunity without determining 16 whether the allegations in fact make out a statutory or constitutional violation. Pearson, 17 555 U.S. at 236-37. 18 As noted above, genuine disputes of material fact exist as to whether Defendant 19 Cuevas violated Plaintiff’s Eighth Amendment rights. If Plaintiff’s claims are presumed 20 true, this evidence could establish that Plaintiff was non-resistant, laying prone, and 21 posing no discernible threat to Cuevas, and that therefore, Cuevas’ actions were 22 “unnecessary” and “wanton.” See Jeffers, 267 F.3d at 907 (citing Crawford-El v. 23 Britton, 523 U.S. 574, 598 (1998)). Thus, “the next . . . step is to ask whether the right 24 was clearly established.” Saucier, 533 U.S. at 201. 25 A right is “clearly established” when its contours are “sufficiently clear that a 26 reasonable official would understand that what he is doing violates that right.” Id. at 202. 27 However, “the clearly established right must be defined with specificity.” City of 28 Escondido v. Emmons, __ U.S. __, 139 S.Ct. 500, 503 (2019). “Qualified immunity 1 attaches when an official’s conduct does not violate clearly established statutory or 2 constitutional rights of which a reasonable person would have known.” Kinsela v. 3 Hughes, 584 U.S. __, 138 S.Ct. 1148, 1152 (2018). 4 The Ninth Circuit has specifically noted that “a prison guard’s use of excessive 5 force was clearly established” by 1992 when the Supreme Court held that the “settled rule 6 [is] that ‘the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual 7 punishment forbidden by the Eighth Amendment.’” Martinez, 323 F.3d at 1184 (quoting 8 Hudson, 503 U.S. at 5). Indeed, Hudson itself held unconstitutional the unjustified use 9 of physical force upon a non-resistant prisoner. See Hudson, 503 U.S. at 7-10 (holding 10 that guards violated Hudson’s Eighth Amendment rights when they gratuitously punched 11 and hit him, causing only minor injuries, while escorting him between prison facilities); 12 see also Martinez, 323 F.3d at 1184 (finding qualified immunity improperly granted to 13 officers who allegedly beat an inmate during a cell extraction, despite his lack of 14 resistance); McRorie v. Shimoda, 795 F.3d 780, 784 (9th Cir. 1986) (finding Eighth 15 Amendment violation when prisoner was assaulted while not resisting). Here, there are 16 triable issues of fact as to whether the amount of force used by Cuevas after Plaintiff was 17 laying prone on the ground was excessive. 18 Accordingly, viewing the facts in the light most favorable to Plaintiff, the Court 19 finds Plaintiff has sufficiently produced evidence to satisfy both prongs of the qualified 20 immunity analysis as to Defendant Cuevas. Therefore, Defendant Cuevas’ Motion for 21 Summary Judgment on qualified immunity grounds is DENIED. 22 VI. Order to Show Cause why Defendant Moya should not be dismissed 23 A review of the Clerk’s docket indicates that Defendant Moya has not been served 24 in this action. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a 25 pro se plaintiff fails to provide the Marshal with sufficient information to effect service, 26 the court’s sua sponte dismissal of those unserved defendants is appropriate under 27 Fed.R.Civ.P. 4(m)). According to the summons returned to the Court on May 3, 2017, 28 the litigation coordinator at CAL would not accept service on Moya’s behalf because he 1 had retired. (ECF No. 15.) In the more than two years since the summons was returned 2 unexecuted, Plaintiff has not sought an extension of time to properly serve Moya. 3 Accordingly, this Court ORDERS Plaintiff to show cause no later than thirty days 4 (30) after this Order is filed, why the claims against this Defendant should not be 5 dismissed for want of prosecution pursuant to Fed.R.Civ.P. 4(m). If Plaintiff wishes to 6 proceed with his claims against Defendant Moya he must provide the Court with proof of 7 proper service within thirty (30) days from the date this Order is filed or a valid excuse 8 for not taking further efforts to effect service. Otherwise, Defendant Moya will be 9 dismissed from this action without prejudice. 10 V. Conclusion and Order 11 In light of the above, the Court; 12 (1) GRANTS Defendants Olivo and Mendoza’s Motion for Summary 13 Judgment pursuant to Fed. R. Civ. P. 56(a) as to Plaintiff’s Eighth Amendment excessive 14 force claims; 15 (2) DENIES Defendant Cuevas’ Motion for Summary Judgment pursuant to 16 Fed. R. Civ. P. 56(a) as to Plaintiff’s Eighth Amendment excessive force claims; 17 (3) GRANTS Defendants Olivo and Mendoza’s Motion for Summary 18 Judgment pursuant to Fed. R. Civ. P. 56(a) as to Plaintiff’s First Amendment retaliation 19 claims; 20 (4) DENIES Defendant Cuevas’ Motion for Summary Judgment pursuant to 21 Fed. R.Civ.P. 56(a) as to Plaintiff’s First Amendment retaliation claims; 22 (5) DENIES Defendants’ Motion for Summary Judgment as to Plaintiff’s 23 Eighth Amendment excessive force and First Amendment retaliation claims as barred by 24 Heck; 25 (6) DENIES Defendant Cuevas’ Motion for Summary Judgment as to 26 Plaintiff’s Eighth Amendment excessive force claims on qualified immunity grounds. 27 / / / 28 / / / 1 2 It is further ordered that: 3 (7) Plaintiff must show cause no later than thirty (30) days from the date this 4 || Order is filed why the claims against Defendant Moya should not be dismissed for want 5 || of prosecution pursuant to Fed.R.Civ.P. 4(m). 6 If Plaintiff fails to provide the Court with documentation demonstrating proper 7 || service on this Defendant within thirty (30) days from the date this Order is filed or a 8 || valid excuse for not taking further efforts to effect service, the claims against him in this 9 || action will be dismissed without prejudice. 10 IT IS SO ORDERED. 11 12 13 || Dated: October 3, 2019 | Til Mieths a 14 Hon. Barry Ted. Moskowitz 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 23 oe