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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CHARLES T. DAVIS,

Plaintiff, No. CIV S-04-0878 GEB DAD P

vs.

C/O KISSINGER, et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking

relief under 42 U.S.C. § 1983. The matter is before the court on plaintiff’s motion for partial

summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. 

Defendants have filed an opposition to the motion and plaintiff has filed a reply.

BACKGROUND

Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. 

On August 21, 2001, he and his fellow inmates filed a group appeal alleging that defendant

Kissinger improperly targets African American inmates and deliberately attempts to provoke

them by searching their cells, using racial slurs against them, and withholding and contaminating

their food. Two days after filing that appeal, defendant Kissinger asked plaintiff and his cellmate

if they wished to shower. Plaintiff responded yes, but asked defendant Kissinger to place his

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handcuffs above a brace plaintiff was wearing on his left wrist. Plaintiff alleges that as soon as

he put his hand through the tray slot, defendant Kissinger grabbed his wrist and began bending it

and putting pressure directly on his injury. When plaintiff pulled his arm back into the cell,

defendant Kissinger said he was going to write him up. Defendant Kissinger then called an

extraction team to plaintiff’s cell, claiming that plaintiff had assaulted him. (Compl. 5-6.)

When the extraction team arrived, plaintiff presented defendant Peery with an

inmate appeal. Defendant Peery refused to take it and yelled “Put your arms through the tray

slot.” Plaintiff asked defendant Peery to place his handcuffs above his wrist brace. Although

defendant Peery placed the cuffs above his brace, he pulled on the cuffs as hard as he could,

bending and twisting plaintiff’s wrist and applying pressure to his injury. According to plaintiff,

defendants Kissinger, Baker, Qualls, and Money stood by as the incident occurred and took no

action. (Compl. at 6-7.)

As defendants Peery and Qualls escorted plaintiff out of the unit for an interview

regarding his alleged assault on defendant Kissinger, plaintiff told them that he had back

problems. Plaintiff also told them that defendant Kissinger was a Ku Klux Klansman. In

response, defendants Qualls and Peery jerked plaintiff’s arms up and caused plaintiff to suffer

immediate back spasms. (Compl. at 7.)

Once plaintiff arrived at the program office he was placed in a cage. He stopped

defendant Ingwerson and told her that he knew that she was aware of the numerous complaints

against defendant Kissinger. As she was responding to him, defendant Money told plaintiff to

leave his lieutenant alone and defendant Peery uttered racist comments. (Compl. at 7-8.)

Defendant Garrison was the medical technical assistant on duty that day. 

Defendant Garrison ignored plaintiff’s repeated requests for pain and blood pressure medication. 

Defendant Garrison also refused to let plaintiff see a doctor and would not come near the cage to

observe and make a notation of the indentation on plaintiff’s wrist. The only notation that 

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defendant Garrison made in the medical report was that plaintiff had difficulty standing in the

cage. (Compl. at 8-9.)

Plaintiff was subsequently placed in administrative segregation. Defendant

Kissinger came to his cell and took out his handcuffs stating “Hey Davis, remember these,” and

began to laugh. Plaintiff filed an inmate appeal complaining about defendant Kissinger’s

conduct and asking that prison officials to keep Kissinger away from him. Plaintiff also asked

defendant Peery to recuse himself from responding to the appeal because he had a similar

complaint against him, but defendant Peery refused. (Compl. at 9.) 

Plaintiff wrote a letter to defendant Runnels about these various incidents, but

defendant Runnels responded that he did not believe there was any racism at High Desert State

Prison. Plaintiff also wrote defendant Runnels asking him to remove defendant Peery from

hearing his appeal, but defendant Runnels did not respond. (Compl. at 9.)

On August 23, 2001, plaintiff saw Dr. Sandham and told him that he had a long

history of back problems and that he had re-injured his left wrist. Dr. Sandham examined

plaintiff and provided him with pain medication to treat his wrist and back pain. Plaintiff told

him that the medication did not help, but Dr. Sandham still ordered the medication for him. 

(Compl. at 10-11.)

On November 20, 2001, plaintiff appeared for his rules violation hearing. 

Plaintiff alleges that the investigative employee report was incomplete and that defendant Norlin,

the senior hearing officer, told him that if he pled guilty he would reduce the violation down to

an administrative rules violation and plaintiff would most likely be released to the general

population. According to plaintiff, when he refused to plead guilty defendant Norlin denied

plaintiff’s requests for witnesses and a new investigative employee and found plaintiff guilty of

the lesser included offense. (Compl. at 10-12.) 

On November 30, 2001, plaintiff was released from administrative segregation

and submitted a medical request to see a doctor. On December 27, 2001, he saw Dr. Rohlfing

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who diagnosed him as suffering from a left wrist sprain and lower-back aggravation and referred

him for casting of his left wrist and physical therapy for his wrist and back. (Compl. at 13.) 

Plaintiff has raised the following eleven claims for relief in his complaint:

Claim One: Defendant Kissinger engaged in racial intimidation that led to a

group appeal against him on August 21, 2001, after he deliberately provoked

black inmates by (1) searching their cells while they were on lockdown status, just

days after a previous search, (2) using racial slurs, and (3) routinely withholding

food or spitting in inmates’ food before delivering it; defendant Kissinger used

excessive force on August 23, 2001, when he pulled plaintiff’s arm through the

food tray slot in the cell door while handcuffing him and deliberately put pressure

on plaintiff’s injured wrist, in violation of plaintiff’s Eighth Amendment rights;

Claim Two: Excessive force was used by defendants Baker, Peery, Qualls, and

Money during a cell extraction on August 23, 2001, after defendant Kissinger

falsely claimed that plaintiff had assaulted him, in violation of plaintiff’s Eighth

and Fourteenth Amendment rights;

Claim Three: Defendants Ingwerson, Money, and Peery failed to properly

supervise their subordinates during the cell extraction on August 23, 2001, in

violation of plaintiff’s Eighth and Fourteenth Amendment rights;

Claim Four: After plaintiff was removed from his cell on August 23, 2001, he

was placed in a holding cage where defendants Garrison (a Medical Technical

Assistant), Money, and Ingwerson denied plaintiff his medications for pain and

high blood pressure, and defendant Garrison refused to examine plaintiff or allow

plaintiff to see a doctor, in deliberate indifference to plaintiff’s serious medical

needs and in violation of plaintiff’s Eighth Amendment rights;

Claim Five: At a disciplinary hearing conducted by defendant Norlin, the

defendant denied plaintiff all requested witnesses and found plaintiff guilty of a

lesser included offense, in violation of plaintiff’s Eighth and Fourteenth

Amendment rights;

Claim Six: Defendant Runnels instituted policies and practices that condoned

misconduct and constitutional violations by subordinates, in violation of

plaintiff’s Eighth and Fourteenth Amendment rights;

Claim Seven: Defendants Kissinger, Peery, and Qualls deprived plaintiff of

equal protection of the laws and violated federal criminal laws when they

subjected plaintiff to racially-motivated excessive force;

Claims Eight through Eleven: Defendants Kissinger, Peery, Runnels, and

Norlin violated plaintiff’s rights under the California Constitution, state

regulations, and state statutes.

(Compl. at 14-32.)

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PROCEDURAL HISTORY

On January 18, 2006, the court ordered the United States Marshal to serve

plaintiff’s complaint on defendants Baker, Ingwerson, Garrison, Money, Norlin, Peery, Qualls,

and Runnels. On April 28, 2006, defendants moved to dismiss the entire action or, in the

alternative, selected claims pursuant to non-enumerated Rule 12(b) and to dismiss other selected

claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 

On July 13, 2006, the undersigned issued findings and recommendations,

recommending that defendants’ motion to dismiss pursuant to non-enumerated Rule 12(b) be

granted as to plaintiff’s fifth, sixth, tenth, and eleventh claims; that plaintiff’s fifth and eleventh

claims against defendant Norlin and plaintiff’s sixth and tenth claims against defendant Runnels

be dismissed without prejudice due to plaintiff’s failure to exhaust administrative remedies on

those claims before bringing this action; and that defendants Kissinger, Baker, Peery, Qualls,

Money, Ingwerson, and Garrison be directed to file an answer to plaintiff’s complaint. On March

13, 2007, the assigned district judge adopted the findings and recommendations in full. On the

same day, defendants Kissinger, Baker, Peery, Qualls, Money, Ingwerson, and Garrison filed an

answer, and on March 22, 2007, the undersigned issued a discovery order. On June 2, 2008,

plaintiff filed the instant motion for partial summary judgment, arguing that he is entitled to relief

on his excessive force and state law claims.

SUMMARY JUDGMENT STANDARDS UNDER RULE 56

Summary judgment is appropriate when it is demonstrated that there exists “no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party 

always bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of “the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,” which it believes

demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the

nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers

to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered,

after adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as

whatever is before the district court demonstrates that the standard for entry of summary

judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the

opposing party to establish that a genuine issue as to any material fact actually does exist. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

establish the existence of this factual dispute, the opposing party may not rely upon the

allegations or denials of its pleadings but is required to tender evidence of specific facts in the

form of affidavits, and/or admissible discovery material, in support of its contention that the

dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party

must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,

1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

committee’s note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the

court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 

Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

show that there is some metaphysical doubt as to the material facts . . . . Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

OTHER APPLICABLE LEGAL STANDARDS 

I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. 

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

omits to perform an act which he is legally required to do that causes the deprivation of which

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the

actions of their employees under a theory of respondeat superior and, therefore, when a named

defendant holds a supervisorial position, the causal link between him and the claimed

constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

allegations concerning the involvement of official personnel in civil rights violations are not

sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Eighth Amendment and Excessive Force

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. It is well established that the “unnecessary and wanton

infliction of pain” constitutes cruel and unusual punishment prohibited by the United States

Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430

U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor

negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and wantonness, not

inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and

Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

What is needed to show unnecessary and wanton infliction of pain “varies

according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S.

1, 5 (1992) (citing Whitley, 475 U.S. at 320). The plaintiff must show that objectively he

suffered a sufficiently serious deprivation and that subjectively each defendant had a culpable

state of mind in allowing or causing the plaintiff’s deprivation to occur. Wilson v. Seiter, 501

U.S. 294, 298-99 (1991).

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“The objective component of an Eighth Amendment claim is . . . contextual and

responsive to ‘contemporary standards of decency.’” Hudson, 503 U.S. at 8 (quoting Estelle, 429

U.S. at 103). The objective prong of the test requires the court to consider whether the alleged

wrongdoing was harmful enough to establish a constitutional violation. Hudson, 503 U.S. at 8;

Wilson, 501 U.S. at 298. In the context of an excessive use of force claim, however, the

objective prong does not require a prisoner to show a “significant injury” in order to establish

that he suffered a sufficiently serious constitutional deprivation. Hudson, 503 U.S. at 9-10.

The subjective prong of the two-part test is also contextual. Wilson, 501 U.S. at

299. A prison official acts with the requisite “culpable mind” with respect to an excessive use of

force claim if he acts maliciously and sadistically for the purpose of causing harm. Whitley, 475

U.S. at 320-21. “[W]henever prison officials stand accused of using excessive physical force in

violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in

Whitley, i.e., whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7.

III. Civil Rights Claim Under State Law

Plaintiff has alleged that the defendants violated his civil rights protected under

two separate statutory provisions of California law. He has now moved for summary judgment

in his favor on both of those claims. Below, the court will address them in turn. 

Under California law, the Bane Civil Rights Act provides:

(a) If a person or persons, whether or not acting under color of law,

interferes by threat, intimidation, or coercion, or attempts to

interfere by threats, intimidation, or coercion, with the exercise or

enjoyment by any individual or individuals of rights secured by the

Constitution or laws of the United States, or of the rights secured

by the Constitution or laws of this state, the Attorney General, or

any district attorney or city attorney may bring a civil action for

injunctive and other appropriate equitable relief in the name of the

people of the State of California, in order to protect the peaceable

exercise or enjoyment of the right or rights secured. . . .

(b) Any individual whose exercise or enjoyment of rights secured

by the Constitution or laws of the United States, or of rights

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secured by the Constitution or laws of this state, has been

interfered with, or attempted to be interfered with, as described in

subdivision (a), may institute and prosecute in his or her own name

and on his or her own behalf a civil action for damages, including,

but not limited to, damages under Section 52, injunctive

relief, and other appropriate equitable relief to protect the

peaceable exercise or enjoyment of the right or rights

secured.

Cal. Civ. Code § 52.1(a) & (b).

There are four elements to a claim brought pursuant to the Bane Act: (1) the

defendant interfered with or attempted to interfere with plaintiff’s constitutional or statutory

right; (2) the plaintiff reasonably believed that if he exercised his constitutional right the

defendant would commit violence against him, or the defendant injured plaintiff to prevent him

from exercising his constitutional right; (3) the plaintiff was harmed; and (4) the defendant’s

conduct was a substantial factor in causing the plaintiff’s harm. See Austin B. v. Escondido

Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007) (“The word ‘interferes’ as used in the Bane

Act means ‘violates.’”); Stamps v. Superior Court, 136 Cal. App. 4th 1441, 1448 (2006) (Bane

Civil Rights Act is intended to supplement Ralph Civil Rights Act and to allow an individual to

seek relief to prevent violence before it occurs). 

Under the Bane Civil Right Act, the plaintiff need not show that the defendant

acted with discriminatory intent. It is enough that the defendant interfered with plaintiff’s

constitutional rights with threats, intimidation, or coercion. See Venegas v. County of Los

Angeles, 32 Cal. 4th 820, 841 (2004). See also Jones v. Kmart Corp., 17 Cal. 4th 329, 334

(1998) (“The Legislature enacted section 52.1 to stem a tide of hate crimes”).

Under California law, the Ralph Civil Rights Act of 1976 provides:

All persons within the jurisdiction of this state have the right to be

free from any violence, or intimidation by threat of violence,

committed against their persons or property because of political

affiliation, or on account of [sex, race, color, religion, ancestry,

national origin, disability, medical condition, marital status, or

sexual orientation], or position in a labor dispute, or because

another person perceives them to have one or more of those

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characteristics. The identification in this subdivision of particular

bases of discrimination is illustrative rather than restrictive.

Cal. Civ. Code § 51.7(a).

There are four elements to a claim brought pursuant to the Ralph Civil Rights Act: 

(1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was

motivated by his perception of plaintiff’s sex, race, color, religion, ancestry, national origin,

disability, medical condition, marital status, or sexual orientation; (3) the plaintiff was harmed;

and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. See

Austin B., 149 Cal. App. 4th at 880-81; Stamps, 39 Cal. App. 4th at 1446 (Ralph Civil Rights

Act was intended to provide all persons with the right to be free from violence or threat of

violence because of race, color religion, ancestry, national origin, political affiliation, or position

in a labor dispute).

IV. California Tort Law

Plaintiff has also alleged a cause of action under California Civil Code § 43 and

now moves for summary judgment in his favor on that claim.

California Civil Code § 43 provides:

Besides the personal rights mentioned or recognized in the

Government Code, every person has, subject to the qualifications

and restrictions provided by law, the right of protection from

bodily restraint or harm, from personal insult, from defamation,

and from injury to his personal relations.

This provision codifies causes of action for assault, battery, and invasion of

privacy. See Marsh v. San Diego County, 432 F. Supp. 2d 1035, 1057-58 (S.D. Cal. 2006). 

Thus, under California Civil Code § 43, an individual has a “right to be free from physical attack

or the threat thereof.” People v. Lashley, 1 Cal. App. 4th 938, 951 (1991). See also Edson v.

City of Anaheim, 63 Cal. App. 4th 1269, 1272-73 (1998) (plaintiff must prove unreasonable

force in a battery action against a police officer).

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V. Qualified Immunity

As will be addressed in more detail below, defendants argue, in part, that

plaintiff’s motion for summary judgment should be denied because they are entitled to qualified

immunity in this case. 

 “Government officials enjoy qualified immunity from civil damages unless their

conduct violates ‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified

immunity defense, the central questions for the court are (1) whether the facts alleged, taken in

the light most favorable to the plaintiff, demonstrate that the defendants’ conduct violated a

statutory or constitutional right and (2) whether the right at issue was “clearly established.” 

Saucier v. Katz, 533 U.S. 194, 201 (2001). Although the court was previously required to

answer these questions in order, the U.S. Supreme Court has very recently held that “while the

sequence set forth there is often appropriate, it should no longer be regarded as mandatory.” 

Pearson v. Callahan, __ U.S. __, __ S. Ct. __, 2009 WL 128768 at *9 (Jan. 21, 2009). In this

regard, if a court decides that plaintiff’s allegations do not make out a statutory or constitutional

violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier,

533 U.S. at 201. Likewise, if a court determines that the right at issue was not clearly established

at the time of the defendant’s alleged misconduct, the court may end further inquiries concerning

qualified immunity at that point without determining whether the allegations in fact make out a

statutory or constitutional violation. Pearson v. Callahan, __ U.S. __, __ S. Ct. __, 2009 WL

128768 at * 9 (Jan. 21, 2009). 

In deciding whether the plaintiff’s rights were clearly established,“[t]he proper

inquiry focuses on whether ‘it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted’ . . . or whether the state of the law in [at the relevant

time] gave ‘fair warning’ to the officials that their conduct was unconstitutional.” Clement v.

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 Plaintiff has submitted his own declaration stating that, between August 23, 2001 and 1

December 2, 2002, he was unable to use his left hand without substantial pain and was unable to

sleep because anytime he rolled over on his wrist he would be awakened by the pain. Plaintiff

notes that he had a cast on his wrist and when doctors removed it in December 2002, his wrist

immediately swelled. Plaintiff also declares that his back was causing him pain because the

prescribed medication doctors gave him was not effective. 

13

Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202). The inquiry must

be undertaken in light of the specific context of the case. Saucier, 533 U.S. at 201. Because

qualified immunity is an affirmative defense, the burden of proof initially lies with the official

asserting the defense. Harlow, 457 U.S. at 812; Houghton v. South, 965 F.2d 1532, 1536 (9th

Cir. 1992); Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1989).

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

I. Plaintiff’s Arguments

Plaintiff argues that he is entitled to summary judgment on his excessive force

claims against defendants Kissinger, Baker, Qualls, Money, and Peery because, he asserts, the

evidence in the case establishes that there was no need for the use of force here. Plaintiff argues

that the facts in the instant case satisfies both the objective and subjective prongs of an Eighth

Amendment claim. Plaintiff first argues that he satisfies the objective prong of the standard

because he suffered a serious injury to his wrist and back as a result of defendants’ alleged

conduct, causing him to suffer substantial pain for an extended period of time. Second, plaintiff 1

argues that he satisfies the subjective prong of the requirements for an Eighth Amendment claim

because defendants acted with a wanton state of mind. For example, plaintiff argues that he

asked defendant Kissinger to accommodate his wrist injury when he handcuffed him, but

defendant Kissinger refused to do so and went out of his way to grab plaintiff’s wrist while

defendant Baker stood by and allowed Kissinger to do so. Similarly, plaintiff explains that he

asked defendant Peery to provide the same accommodation for his wrist, but defendant Peery

twisted and bent plaintiff’s wrist as defendants Kissinger, Baker, Qualls and Money stood by and

watched. (Pl.’s Mot. for Summ. J. at 4-20.)

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 Plaintiff also argues that he is entitled to summary judgment on his state law

claims. Specifically, plaintiff argues that California Civil Code § 43 and Article I, § 17 of the

California Constitution prohibited the excessive use of force by defendants Kissinger, Peery, and

Qualls and barred defendants Baker, Money and Qualls from standing by and failing to stop the

other defendants from breaking his wrist. In addition, plaintiff argues that under California Civil

Code § 52.1, he only needs to show that defendants intimidated him, and under California Civil

Code § 57.1, he only needs to show that defendants intimidated him based on a disability in order

to establish liability. Finally, plaintiff appears to argue that the defendants’ conduct violated

California Government Code § 815.6 and a number of other cited state regulations, including

California Code of Regulations Title 15, §§ 3268(a)(2) & (3), 3268.1(a)(1), and 3268.2(b)(3). 

(Pl.’s Mot. for Summ. J. at 4, 20-27.)

II. Defendants’ Arguments

In opposition to plaintiff’s motion for summary judgment defendants have

submitted a separate statement of disputed material facts supported by their own declarations,

declarations from other correctional officers who witnessed the events in question, excerpts from

plaintiff’s deposition, prison incident reports and rules violation reports that were issued in

connection with this incident involving plaintiff. (See Doc. No. 140.) Based upon this evidence,

defense counsel argues that genuine issues of material fact exist as to plaintiff’s Eighth

Amendment excessive force claims. Specifically, in his declaration defendant Kissinger denies

that he bent plaintiff’s wrist “extremely hard” or that he “placed extreme pressure on a tendon in

Plaintiff’s left wrist.” (Defs.’ Separate Statement of Disputed Material Facts (DSSDMF) filed

Oct. 9, 2008, Ex. A at 2.). Defendant Kissinger also declares that in applying the restraints on

plaintiff, he placed the handcuffs below an “ACE” type bandage on plaintiff’s wrist and did not

place the handcuffs above the bandage as plaintiff requested because he could not properly

secure the handcuffs in that fashion. (Id.) According to defendant Kissinger, as he attempted to

place handcuffs on plaintiff’s left wrist, he held plaintiff’s wrist with his right hand and plaintiff

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lunged forward, pulling defendant Kissinger’s right hand and wrist through the food port,

injuring defendant Kissinger himself. (Id.; see also DSSDMF, Ex. B; Defs.’ Opp’n to Pl.’s Mot.

for Summ. J. at 8-9.)

Similarly, defendant Peery has submitted a declaration denying that he bent or

twisted plaintiff’s arm, placed pressure with his thumbs on a tendon in plaintiff’s left arm or used

“the cuffs like a weapon” against plaintiff. (DSSDMF, Ex. B at 2.) In responding to defendant

Kissinger’s call reporting that plaintiff had assaulted him, defendant Peery states that he

requested plaintiff to place his hands through the food port and that plaintiff eventually complied. 

(Id.) Counsel on behalf of defendant Peery argues that under these facts, any force Peery used

was necessary to secure plaintiff so that he could be escorted to the program office for an

interview concerning his assault on defendant Kissinger. (Defs.’ Opp’n to Pl.’s Mot. for Summ.

J. at 9; DSSDMF, Exs. A-E.)

Defendants Peery and Qualls also deny that they raised plaintiff’s hands up from

behind to cause him to stumble forward or that they applied unnecessary force as they escorted

plaintiff from his cell to the program office. (DSSDMF, Exs. C & E.) Rather, according to

defendant Peery, during the escort plaintiff was walking in an uncooperative manner, alternating

big steps, little steps, and side steps. (Id., Ex. C at 2.) Defendant Peery believed that plaintiff

walked in this manner to gain the attention of other inmates. (Id.)

Finally, defendants Baker, Qualls, and Money deny that they witnessed defendants

Kissinger or Peery apply wanton or unnecessary force in restraining plaintiff. (DSSDMF, Exs. B,

D & E.) In addition, defendants Kissinger, Baker, Qualls, and Money deny witnessing defendant

Peery apply unnecessary force in restraining plaintiff. (Id., Exs. A, B, D & E.) Finally,

defendants Baker and Money deny using any force themselves during the incident involving

plaintiff. (Id., Exs. B & D.)

Counsel on behalf of the defendants also argues that genuine issues of material

fact exist as to plaintiff’s state law claims precluding the granting of summary judgment in

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 Defense counsel also argues that many of the documents plaintiff relies upon in support 2

his statement of undisputed facts lack authentication, foundation, or constitute hearsay or

improper medical opinions. In addition, counsel argues that many of plaintiff’s contentions in

his statement of undisputed facts constitute argument rather than evidence. (Defs.’ Opp’n to

Pl.’s Mot. for Summ. J. at 5-8.) Although the undersigned acknowledges these objections to the

evidence offered by plaintiff, the court need not address those objections in light of the

recommendation herein that plaintiff’s motion for summary judgment be denied.

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plaintiff’s favor as to those claims. Specifically, each of the defendants have submitted

declarations denying that they committed acts of violence or intimidation against plaintiff. 

(DSSDMF, Exs. A, B, C, D & E.) Defendants Kissinger, Qualls, and Peery maintain that they

did not handcuff plaintiff because he is an African American or because he was wearing an ACE

bandage. (Id., Exs. A, C & E.) The defendants also deny themselves making or witnessing any

other correctional officer make any racial or discriminatory remarks directed at plaintiff. (Id.,

Exs. A-E.)

Similarly, all of the defendants deny committing or witnessing any acts of

violence or intimidation against plaintiff that could constitute violations of the Ralph Act or

California Civil Code § 43. (Id., Exs. A-E.) They also each deny harming plaintiff when they

handcuffed and escorted him to the program office. (Id.)

Finally, counsel briefly argues that defendants are entitled to qualified immunity. 

In this regard, counsel contends that even if the defendants were found to have used excessive

force in handcuffing and escorting plaintiff to the program office or to have violated plaintiff’s

rights under state law, plaintiff has failed to present any evidence that there was at the time any

law clearly establishing that inmates must be handcuffed above an ACE bandage as he requested. 

In absence of such evidence, defense counsel argues, plaintiff cannot defeat defendants’ claim of

entitlement to qualified immunity. (Defs.’ Opp’n to Pl.’s Mot. for Summ. J. at 12.)2

III. Plaintiff’s Reply

In reply, plaintiff argues that the defendants have attempted to categorize his

serious injury as de minimis to negate his Eighth Amendment claim. However, he contends that

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the defendants have not submitted any expert testimony in support of their position and have

failed to controvert the undisputed facts that plaintiff sought and received treatment for the injury

defendants caused him. Plaintiff argues that the declarations submitted by defendants, which he

characterizes as boilerplate, are insufficient to defeat his motion for summary judgment on his

Eighth Amendment claim. In plaintiff’s opinion, the fact that it took five officers to escort him

to the shower demonstrates that the force used was not necessary. (Pl.’s Reply at 3-14.)

In addition, plaintiff argues that under the Bane Civil Rights Act, the Ralph Civil

Rights Act, and California Civil Code § 43, he need only show that defendants intimidated him. 

According to plaintiff, his own perception of what constitutes intimidating conduct is the proper

legal standard to be applied. Plaintiff also argues that in order to demonstrate discriminatory

intent he need only show that defendants perceived he had a disability and targeted him as a

result thereof. He claims that he has done so. Plaintiff also argues that because the defendants

cannot defeat his excessive force claim under the Eighth Amendment, they cannot defeat his state

law claims of assault and unnecessary force. According to plaintiff where, as here, there was no

need for force any use of force is objectively unreasonable. (Pl.’s Reply at 14-16.)

Finally, plaintiff argues that qualified immunity protects officers except when they

are plainly incompetent or when they knowingly violate the law. Here, plaintiff argues, it is well

established that handcuffing a prisoner too tight constitutes excessive and unreasonable force and

that defendants are therefore not entitled to qualified immunity. (Pl.’s Reply at 21.)

ANALYSIS

I. Plaintiff’s Excessive Force Claims

Based upon the evidence and arguments presented to the court in connection with

the pending motion it is clear that the parties in this case agree on very little. In considering

plaintiff’s motion for summary judgment, the court is required to believe defendants’ evidence

and draw all reasonable inferences from the facts before the court in defendants’ favor. Here, the

court finds that the evidence presented by defendants in opposition to plaintiff’s motion for

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 The Ninth Circuit has repeatedly cautioned lower courts to take care in deciding cases

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involving excessive use of force claims at the summary judgment stage. In this regard, that court

has explained that: 

Because [the excessive force inquiry] nearly always requires a jury

to sift through disputed factual contentions, and to draw inferences

therefrom, we have held on many occasions that summary

judgment or judgment as a matter of law in excessive force cases

should be granted sparingly. 

Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). See also Smith v. City of Hemet, 394 F.3d

689, 701 (9th Cir. 2005); Lolli v. County of Orange, 351 F.3d 410, 415-16 (9th Cir. 2003). This

case is no different. 

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summary judgment establishes that triable issues of material fact exist. Based upon that evidence 

a reasonable jury could conclude that defendants’ actions did not violate the Eighth Amendment. 

In this regard, defendants Kissinger, Peery, Baker, Money and Qualls have submitted detailed

declarations, signed under penalty of perjury, disputing nearly every aspect of plaintiff’s version

of events. See DSSDMF, Exs. A, B, C, D & E. Defendants’ sworn statements regarding the

events that took place on August 23, 2001, if believed, are sufficient to defeat plaintiff’s claim

that excessive force was used against him. See Hudson, 503 U.S. at 9 (not every malevolent

touch by a prison guard gives rise to a federal cause of action). Accordingly, plaintiff is not

entitled to summary judgment in his favor on his excessive use of force claims.

3

II. Plaintiff’s State Law Claims

Plaintiff’s state law claims are premised on the same fact allegations as his

excessive use of force claims. Again, the court finds that the evidence presented by defendants in

opposition to plaintiff’s motion for summary judgment establishes that triable issues of material

fact exist as to plaintiff’s claims under state law. Based upon that evidence, a reasonable jury

could conclude that defendants’ actions did not violate any of the state law provisions cited by

plaintiff. All of the defendants have declared that they have never intimidated, used or

threatened the use of violence, or made any discriminatory remarks against plaintiff. See

DSSDMF, Exs. A, B, C, D & E. In addition, the defendants have all declared that they have

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 Plaintiff also argues that he is entitled to summary judgment and damages on his 4

excessive force claims under the California Constitution. Cal. Const. art. I, § 17. Plaintiff is

advised that there is no private cause of action for damages under the state cruel and unusual

punishment clause. See Giraldo v. Cal. Dep’t Corrs. & Rehab., 168 Cal. App. 4th 231, 253-56

(2008) (“there is no basis to recognize a claim for damages under article 1, section 17 of the

California Constitution.”). In addition, plaintiff claims that he is entitled to summary judgment

under California Government Code § 815.6. Plaintiff is advised that § 815.6 applies to public

entities and is therefore inapplicable to this action. Finally, plaintiff claims that he is entitled to

summary judgment on his claims under California Code of Regulations Title 15, §§ 3268(a)(2) &

(3) (defining unnecessary force and excessive force), 3268.1(a)(1) (reporting non-deadly force),

and 3268.2(b)(3) (use of mechanical restraints). Plaintiff is advised that § 1983 provides a cause

of action only for violations of the U.S. Constitution and federal laws. See Sweaney v. Ada

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never witnessed other correctional staff intimidate, use or threaten the use of violence, or make

any discriminatory remarks against plaintiff. (Id.) Again, defendants’ sworn statements

regarding the events that took place on August 23, 2001, if believed, are sufficient to defeat

plaintiff’s state law claims. See, e.g., Kincaid v. City of Fresno, No. CIV F-06-1445, 2008 WL

2038390 at *15-16 (E.D. Cal. May 12, 2008) (denying plaintiff’s motion for summary judgment

on a Bane Civil Rights Act claim because defendants “raised substantial disputed issues of

material fact” regarding their alleged interference with plaintiff’s right to possess property). Cf.

Cole v. Doe 1 Thru Doe 2 Officers, 387 F. Supp. 2d 1084, 1103 (N.D. Cal. 2005) (denying

defendants’ motion for summary judgment on Bane Act claims because “[u]se of law

enforcement authority to effectuate a stop, detention (including use of handcuffs), and search can

constitute interference by ‘threat[], intimidation, or coercion’ if the officer lacks probable cause

to initiate the stop, maintain the detention, and continue a search.”); Spears v. City & County of

San Francisco, No. C 06-4968 VRW, 2008 WL 2812022 at *13-14 (N.D. Cal. July 21, 2008)

(denying Sheriff Deputy’s motion for summary judgment on former female inmate’s Bane Civil

Rights Act claim because the plaintiff offered ample evidence that the deputy interfered with her

right to be free from sexual assault); Bates v. Arata, No. C 05-3383 SI, 2008 WL 820578 at *26-

27 (N.D. Cal. Mar. 26, 2008) (“The only Bane Act claims that survive summary judgment are the

excessive force claims. . . .”). Accordingly, plaintiff is not entitled to summary judgment in his

favor on his state law claims.

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County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). “To the extent that the violation of a state

law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by

the federal Constitution, Section 1983 offers no redress.” Id. Indeed, there is not a single

reported state or federal case permitting an independent cause of action pursuant to these

regulations. Accordingly, these state law claims should be dismissed with prejudice. 

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III. Qualified Immunity

As noted above, the parties in this case agree on very little. In asserting that they

are entitled to qualified immunity with respect to plaintiff’s claims, defendants bear the burden of

proof on the issue and must produce sufficient evidence to require the plaintiff to go beyond his

pleadings and, in the summary judgment context, must demonstrate the absence of a genuine

issue of material fact. Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). Viewing plaintiff’s

allegations and evidence in the light most favorable to him as is required, plaintiff’s version of

the events would demonstrate that defendants violated his rights under the Eighth Amendment. 

Moreover, the state of the law at the time of the alleged incident clearly would have given

defendants fair warning that their alleged use of excessive force on plaintiff was unconstitutional. 

As the United States Supreme Court has recognized:

[G]eneral statements of the law are not inherently incapable of

giving fair and clear warning, and in other instances a general

constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question, even

though “the very action in question has [not] previously been held

unlawful.”

United States v. Lanier, 520 U.S. 259, 271 (1997) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). In this regard, it was well established by 2001 that “whenever prison officials stand

accused of using excessive physical force in violation of the Cruel and Unusual Punishments

Clause, the core judicial inquiry is that set out in Whitley, i.e., whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

Hudson, 503 U.S. at 6-7. Here, defendants were on notice that they could not intentionally use

their handcuffs to re-injure plaintiff’s left wrist or jerk plaintiff’s arms up while handcuffed to

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 To the extent that counsel has argued that defendants are entitled to qualified immunity 5

from plaintiff’s state law claims, the argument fails. Counsel has not provided the court with any

authority in support of the application of qualified immunity to state civil rights statutes. In fact,

the California Court of Appeal has specifically rejected such an argument with respect to state

law claims under the Bane Civil Rights Act. See Venegas v. County of Los Angeles, 153 Cal.

App. 4th 1230, 1246 (2007) (“we hold qualified immunity of the kind applied to actions brought

under 42 United States Code section 1983 does not apply to actions brought under section 52.1”).

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aggravate his back problems. Accordingly, defendants are not entitled to relief with respect to

their affirmative defense of qualified immunity. 

5

CONCLUSION

For the reasons discussed above, IT IS HEREBY RECOMMENDED that:

1. Plaintiff’s June 2, 2008 motion for summary judgment (Doc. No 118) be

denied; and

2. Plaintiff’s state law claims under the California Constitution Article I, Section

17, California Government Code § 815.6, and California Code of Regulations Title 15, §§

3268(a)(2) & (3), 3268.1(a)(1), and 3268.2(b)(3) be dismissed with prejudice. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: February 3, 2009.

DAD:9

davi0878.57

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