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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., ORDER AND

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 defendants’ motion summary

judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed

an opposition to the motion, and defendants have 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 for cuffing, 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 and claimed 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 at him to put his arms through the

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

defendant Peery placed the cuffs above plaintiff’s 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 to the program office 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 holding cell. 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. Defendant Peery also passed by plaintiff’s cell and uttered

racist comments towards him. (Compl. at 7-8.)

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

According to plaintiff, defendant Garrison ignored his repeated requests for his 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

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

standing in the cell. (Compl. at 8-9.)

Plaintiff subsequently was transferred to 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 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 24, 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 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’ non-enumerated Rule 12(b) motion to dismiss 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 before bringing

this action with respect to those claims; 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 those 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 a motion for partial summary judgment, arguing

that he was entitled to judgment in his favor on his excessive force and state law claims. On

February 3, 2009, the undersigned issued findings and recommendations, recommending that

plaintiff’s motion be denied because based upon the evidence presented to the court a reasonable

jury could conclude that defendants’ actions did not violate the Eighth Amendment, the Bane

Civil Rights Act, the Ralph Civil Rights Act, or California tort law. The court also explained

that plaintiff had no private cause of action for damages under the California Constitution’s Cruel

and Unusual Punishment Clause and that he failed to state a cognizable claim under the

California Government Code and the California Code of Regulations. On March 10, 2009, the

/////

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assigned district judge adopted the findings and recommendations in their entirety and dismissed

plaintiff’s latter state law claims with prejudice. 

On October 9, 2008, defendants filed the instant motion for summary judgment,

arguing that defendants Baker and Money did not fail to protect plaintiff, defendants Ingwerson,

Money, and Peery did not fail to supervise their subordinates, defendants Garrison, Money, and

Ingwerson did not fail to provide plaintiff with adequate medical care, none of the defendants

deprived plaintiff of equal protection under the law, defendants Kissinger and Peery did not

commit racially-motivated assault and battery in violation of either the Bane Civil Rights Act or

the Ralph Civil Rights Act, and that all of the defendants are entitled to qualified immunity. 

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.

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

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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

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

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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

(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

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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, Failure to Protect, and Inadequate Medical Care

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. 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). To prevail on an Eighth Amendment claim the

plaintiff must show that objectively he suffered a “sufficiently serious” deprivation. Farmer, 511

U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that

subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff’s

deprivation to occur. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

It is well established 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. A prisoner is not required to show a “significant injury” to establish that he suffered a

sufficiently serious constitutional deprivation. Hudson, 503 U.S. at 9-10.

It is also well established that “prison officials have a duty . . . to protect prisoners

from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833. “Being violently

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assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offense

against society.’” Id. at 834. Prison officials do not, however, incur constitutional liability for

every injury suffered by a prisoner at the hands of another prisoner. Id. A prison official violates

the Eighth Amendment “only if he knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. 

Finally, it is well established that “deliberate indifference to serious medical needs

of prisoners constitutes ‘unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at 104;

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX

Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In general, deliberate

indifference may be shown when prison officials deny, delay, or intentionally interfere with

medical treatment, or may be shown by the way in which prison officials provide medical care. 

Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a

prisoner’s civil rights have been abridged with regard to medical care, however, “the indifference

to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical

malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d

458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). 

III. Fourteenth Amendment and Equal Protection

The Equal Protection Clause “is essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S.

432, 439 (1985). “Prisoners are protected under the Equal Protection Clause of the Fourteenth

Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539,

556 (1974). To state a viable claim under the Equal Protection Clause, however, a prisoner

“must plead intentional unlawful discrimination or allege facts that are at least susceptible of an

inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205,

1212 (9th Cir. 2009) (quoting Monteiro v. Tempe Union High School District, 158 F.3d 1022,

1026 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted at least in part

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because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003)

(quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)).

IV. State Civil Rights Law

California’s 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

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) (the

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). 

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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”).

California’s 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

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 (the 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).

V. California Tort Law

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.

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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). 

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) (a plaintiff must prove unreasonable force in a

battery action against a police officer).

VI. Qualified Immunity

 “Government officials enjoy qualified immunity from civil damages unless their

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

person would have known.’” 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 defendant’s 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 once required to answer these questions in order, the

United States Supreme Court has 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. ___,

___, 129 S. Ct. 808, 818 (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, 129 S. Ct. at 818-21. 

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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 [at the relevant time]

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

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. Defendants’ Statement of Undisputed Facts and Evidence

Defendants’ statement of undisputed facts is supported by citations to declarations

under penalty of perjury by defendants Kissinger, Baker, Peery, Qualls, Money, Ingwerson, and

Garrison as well as by citations to a declaration by High Desert State Prison (“HDSP”) Chief

Medical Officer Swingle. Defendants’ motion is also supported by citations to plaintiff’s

deposition transcript. 

The evidence submitted by the defendants establishes the following. On August

23, 2001, plaintiff was incarcerated at HDSP in Building Five. At all relevant times, all of the

defendants were employees of the California Department of Corrections and Rehabilitation and

worked at HDSP. On August 23, 2001, Building Five was on lock down. When a building is on

lock down status, correctional staff place inmates who want to shower in restraints and escort

them to the showers. At approximately 1525 hours, defendants Kissinger and Baker went to cell

120. Defendant Kissinger asked plaintiff and his cellmate, inmate Hardaway, if they wanted to

shower. Both inmates responded yes. (Defs.’ SUDF 1-7 & Exs. E-G, Pl.’s Dep.) 

Inmate Hardaway went to the cell door, placed his back to the door, and placed his

arms through the food port one at a time. Defendant Kissinger secured the handcuffs on each of

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inmate Hardaway’s arms and then told plaintiff to approach the cell door. Plaintiff approached

the cell door and placed his back to the door. Defendants Kissinger and Baker noticed that

plaintiff was wearing an “ACE” type bandage on his left wrist. Plaintiff asked if defendant

Kissinger could secure the handcuffs above the bandage. Defendant Kissinger told plaintiff that

he had to fasten the handcuffs below the bandage to insure that they remained secure on his wrist. 

Plaintiff placed his left hand through the port. Holding plaintiff’s left hand with his right hand,

defendant Kissinger applied the handcuffs to plaintiff’s left wrist. Defendant Baker did not see

defendant Kissinger bend plaintiff’s left wrist extremely hard or place extreme pressure on a

tendon in plaintiff’s left wrist. Plaintiff could not see defendant Baker while defendant Kissinger

applied the handcuffs to him. (Defs.’ SUDF 8-15 & Exs. A, B, Pl.’s Dep.) 

Plaintiff lurched forward and pulled his left arm back through the food port. 

Defendant Kissinger continued to hold plaintiff’s left arm with his right hand. Defendant

Kissinger’s hand was scratched by the top of the food port. Defendant Kissinger released

plaintiff’s arm and went to call his sergeant. Plaintiff began yelling as defendants Kissinger and

Baker left the cell. Defendant Kissinger spoke to defendant Peery and told him that plaintiff had

forced his right arm through the food port when he attempted to apply handcuffs to plaintiff’s left

wrist. (Defs.’ SUDF 16-20 & Exs. A, B.)

At approximately 1535 hours, defendants Peery, Money, and Qualls went to

plaintiff’s cell to investigate the reported staff assault. After speaking with defendant Kissinger,

defendant Peery instructed plaintiff to place his arms, in sequence, through the food port so that

he could apply the hand restraints. Plaintiff placed his back against the cell door and placed his

left arm through the food port. Defendant Peery secured the handcuffs on his left arm. 

Defendant Peery then ordered plaintiff to place his right arm through the food port. He issued the

same order three times. On the third order, plaintiff put his right arm through the food port, and

defendant Peery secured the handcuffs on him. During this time, none of the defendants heard

plaintiff scream or yell in pain. Nor did they witness defendant Peery bend or twist plaintiff’s

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arm, put pressure with his thumbs on a tendon in plaintiff’s left arm, or “use the cuffs like a

weapon.” Plaintiff could not see the other defendants while defendant Peery applied the

handcuffs to him. (Defs.’ SUDF 21-29 & Exs. A-E, Pl.’s Dep.)

The control tower opened plaintiff’s cell door. Defendants Qualls and Peery

escorted plaintiff to the program office and placed him in holding cell number 1. After a short

time, defendant Ingwerson walked by the cell. Plaintiff told defendant Ingwerson that he

believed defendant Kissinger was a racist. Plaintiff heard defendant Ingwerson respond that

“when you people get together. . . .” During their conversation, defendant Money walked by and

said “leave my lieutenant alone, all your people are liars anyway.” Plaintiff responded to

defendant Money that “this is an A and B conversation, why don’t you see your way out.” 

(Defs.’ SUDF 30-37 & Exs. A-F, Pl.’s Dep.)

Defendant Garrison, a medical technical assistant, entered the program office and

examined plaintiff. Plaintiff asked defendant Garrison to retrieve the prescription medications

(Motrin and Baclofen) he had in his cell. Defendant Garrison did not retrieve these medications

because plaintiff did not have an immediate need for them. Defendant Garrison then cleared

plaintiff for placement in administrative segregation. Defendant Garrison also examined

defendant Kissinger for injuries on the same day. (Defs.’ SUDF 38-40 & Exs. G, H, Pl.’s Dep.)

The defendants in this action are not and have never been members of the Ku

Klux Klan. Defendants have also never witnessed any correctional staff intimidate, use, or

threaten the use of force, or make any racial remarks towards plaintiff. (Defs.’ SUDF 41-42 &

Exs. A-G.)

II. Defendants’ Arguments

Defense counsel argues that the defendants are entitled to summary judgment in

their favor on each of plaintiff’s claims for the following reasons. First, counsel argues that

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 In Claim Two of plaintiff’s complaint, he alleges that defendants Baker, Peery, Qualls 1

and Money used excessive force against him during a cell extraction. At his deposition,

however, plaintiff clarified that his “excessive force” claims against defendants Baker and Money

stem from their alleged failure to protect him from the alleged excessive use of force by

defendants Kissinger and Peery. 

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defendants Baker and Money did not fail to protect plaintiff from a risk of serious harm.

1

Specifically, defense counsel contends that defendant Baker did not fail to protect plaintiff when

defendant Kissinger attempted to apply handcuffs to plaintiff because defendant Baker did not

witness defendant Kissinger bend plaintiff’s wrist or place extreme pressure on a tendon in

plaintiff’s wrist. Moreover, even if these acts did take place and constituted the excessive use of

force, defense counsel argues that plaintiff could not and does not know what defendant Baker

did or what defendant Baker saw while defendant Kissinger attempted to apply the handcuffs to

him because the evidence establishes that plaintiff’s back was to the cell door. Similarly, counsel

contends that defendants Baker and Money did not fail to protect plaintiff when defendant Peery

applied the handcuffs because they did not witness plaintiff scream in pain as defendant Peery

allegedly twisted his arm. Moreover, even if these acts did take place and constituted the

excessive use of force, counsel argues that plaintiff does not know what defendants Baker and

Money did or what they saw while defendant Peery applied the handcuffs because, again, the

evidence establishes that plaintiff’s back was to the cell door. (Defs.’ Mem. of P. & A. at 6-7.) 

Second, defense counsel argues that plaintiff has failed to assert any specific,

cognizable supervisory claims against defendants Ingwerson, Money, and Peery, aside from his

claim that defendants Kissinger and Peery used excessive force in applying restraints while under

their supervision. Counsel contends, however, that there is no evidence of a causal connection

between defendants Ingwerson, Money, and Peery and the alleged acts of their subordinates. 

According to counsel, the evidence reflects that none of these defendants observed any use of

excessive force against plaintiff. (Defs.’ Mem. of P. & A. at 8.)

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Third, defense counsel argues that defendants Garrison, Ingwerson, and Money

were not deliberately indifferent to plaintiff’s medical needs. In this regard, defense counsel

acknowledges that plaintiff has alleged that defendant Garrison failed to retrieve his medication

for him while he was in the program office. However, counsel notes that while plaintiff alleges

that defendant Garrison’s inaction placed him at risk of being “killed” because he is African

American, plaintiff has provided no evidence to support this assertion. Nor, according to

counsel, does plaintiff provide any evidence that defendant Garrison’s failure to retrieve

plaintiff’s high blood pressure medication caused plaintiff actual harm. Moreover, counsel

contends that plaintiff’s mere allegation that defendants Ingwerson and Money “aided and

abetted” defendant Garrison does not establish deliberate indifference on their part. In fact,

according to counsel, plaintiff has provided no evidence that either defendants Ingwerson or

Money deliberately ignored plaintiff’s serious medical needs in any respect. (Defs.’ Mem. of P.

& A. at 8-9.) 

Fourth, defense counsel argues that the none of defendants’ alleged conduct

denied plaintiff equal protection under the law. Specifically, counsel contends that the alleged

verbal harassment or abuse is not sufficient to state a constitutional violation, so that any racial

references defendants allegedly directed at plaintiff are not actionable. In addition, counsel

contends that there is no evidence that defendants’ alleged treatment of plaintiff on August 23,

2001, was due to plaintiff being African-American. Nor, according to defense counsel, is there

any evidence that defendants intended to discriminate against plaintiff because of his race. 

Finally, counsel notes that contrary to plaintiff’s unfounded allegations, there is no evidence

before the court that any of the defendants are members of the Ku Klux Klan. (Defs.’ Mem. of P.

& A. at 9-12.)

Fifth, defense counsel argues that the evidence establishes that defendants

Kissinger and Peery did not commit racially-motivated assault and battery against plaintiff in

violation of the Bane and Ralph Civil Rights Acts. Plaintiff alleges that defendant Kissinger and

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 Notwithstanding the length of plaintiff’s opposition, his arguments often fail to squarely 2

address those of defense counsel. Instead, plaintiff offers independent arguments as to the merits

of each his claims. 

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Peery’s application of handcuffs to him constitutes violence and intimidation, and that they

restrained him based on his African American race and his wearing of an “ACE” bandage. 

However, defense counsel contends that there is no evidence that defendants restrained plaintiff

on account of his race or because he was wearing an “ACE” bandage. (Defs.’ Mem. of P. & A.

at 12-13.)

Finally, defense counsel argues that the defendants are entitled to qualified

immunity. In this regard, and for many of the same reasons discussed above, defense counsel

maintains that there is no evidence that defendants violated any of plaintiff’s constitutional

rights. (Defs.’ Mem. of P. & A. at 13-16.)

III. Plaintiff’s Opposition 

Plaintiff’s opposition to defendants’ motion for summary judgment is supported

by a statement of undisputed facts and numerous exhibits attached thereto, including excerpts

from plaintiff’s deposition and copies of plaintiff’s medical records. In his opposition, plaintiff 2

argues as follows. 

As to defendant Kissinger, plaintiff argues that Kissinger disregarded a substantial

risk to plaintiff’s health and safety by applying handcuffs in a manner that would cause plaintiff

undue discomfort. In addition, plaintiff argues that defendant Kissinger intentionally

discriminated against him when he applied that excessive force. Plaintiff contends that defendant

Kissinger’s racial animus towards him is evidenced by his repeated verbal harassment and abuse

of plaintiff. Plaintiff also notes that other African American inmates have filed complaints

against defendant Kissinger for similar acts of racial intimidation. Even his cellmate warned

plaintiff when they first met “You’d better watch out for Hitler,” referring to defendant

Kissinger. (Pl.’s SUDF 1 & Attach. 1, Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 5-11.)

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As to defendant Baker, plaintiff argues that Baker worked in concert with

defendant Kissinger to violate his Eighth Amendment rights. Plaintiff contends that Baker saw

defendant Kissinger’s conduct, but nevertheless submitted a “fraudulent report” to the rules

violation hearing officer thereby obstructing justice. (Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at

16.)

As to defendants Peery and Qualls, plaintiff argues that defendant Peery

aggravated plaintiff’s wrist injury when he applied handcuffs to him, and that defendants Peery

and Qualls aggravated plaintiff’s back problems when they lifted his arms above his head while

he was in handcuffs. At the time, plaintiff contends that he was trying to explain to those

defendants that defendant Kissinger was a racist. According to plaintiff, however, defendants

Peery and Qualls simultaneously responded “That’s the way we do it around here.” Plaintiff

contends that he needed medical treatment, including physical therapy, as a direct result of this

application of excessive force. Plaintiff also argues that he objected to defendant Peery

processing his inmate appeal about defendant Kissinger’s ongoing racial intimidation. 

Nonetheless, defendant Peery reviewed plaintiff’s inmate appeal as defendant Kissinger’s

supervisor. In this regard, plaintiff argues that defendant Peery was aware of his ongoing

complaints regarding defendant Kissinger and that it is not credible for defendant Peery to

contend that he had no knowledge of inmate complaints about defendant Kissinger. (Pl.’s SUDF

3, 9 & Attachs. 1, 3, Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 18-19 & 21-22.) 

As to defendant Money, plaintiff argues that Money is a sergeant and directly

supervises defendant Kissinger. Plaintiff notes that defendant Money was also present when

defendant Peery tried to break plaintiff’s wrist in the cell door tray slot but now claims that the

incident never happened. Likewise, plaintiff argues that defendant Ingwerson is a lieutenant who

supervises defendants Peery, Money, and Qualls. According to plaintiff, defendant Ingwerson

stood by and did nothing as defendants Peery and Money directed racial slurs at him. Plaintiff

also contends that defendant Ingwerson knew of defendant Kissinger’s history of racial targeting

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and “aided and abetted” defendants Peery, Money, Qualls, Baker, and Garrison when she

authorized plaintiff’s placement in administrative segregation. (Pl.’s Opp’n to Defs.’ Mot. for

Summ. J. at 23-26.) 

As to defendants Garrison, Money, and Ingwerson, plaintiff argues that he

repeatedly asked these defendants to retrieve his pain and high blood pressure medications from

his cell, but they refused to do so. According to plaintiff, these defendants were obligated to

retrieve his medication because a physician had previously prescribed it for him. Plaintiff notes

that defendant Garrison even recognized in his medical report that plaintiff had difficulty

standing in the cell. Plaintiff contends that defendant Garrison’s refusal to provide him with

medical care was racially motivated because Garrison has offered no other legitimate reason for

not retrieving his medications. Plaintiff also notes that defendant Garrison treated defendant

Kissinger who is white and had a similar injury, but he refused to treat plaintiff because he is

African-American. As a result of defendants’ conduct, plaintiff contends that he suffered

substantial and unnecessary pain. Plaintiff notes that once he was transferred to administrative

segregation, he spoke with Dr. Sandham who agreed to see him unscheduled and prescribed him

Motrin and Baclofen. Finally, plaintiff observes that after prison officials found him not guilty of

the staff assault on defendant Kissinger, he requested medical treatment for his injuries. On

December 26, 2001, Dr. Rohlfing, his primary care physician for more than two years, examined

plaintiff and noted that he moved “very slowly” in discomfort from back spasms and that he had

pain in his wrist. Dr. Rohlfing also referred him for physical therapy and planned to re-ducat him

to the orthopedic clinic to cast his left forearm. (Pl.’s SUDF 4, 6, 8, 9 & Attachs. 1, 3, Pl.’s

Opp’n to Defs.’ Mot. for Summ. J. at 27-34.) 

Plaintiff also argues that the defendants violated his rights under state law. For

example, he contends that defendant Kissinger racially intimidated him and committed assault

and battery against him. Plaintiff also argues that defendants Kissinger, Peery, and Qualls had an

affirmative duty not to use force against him unnecessarily and are to refrain from referring to

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inmates in a derogatory or discriminatory manner. Plaintiff contends that defendant Peery

nonetheless repeatedly came by his holding cell and said “Hey, you look like a monkey” and

“Hey, you look like you’ve been playing in the mud with monkeys.” (Pl.’s SUDF 5 & Attach. 1,

Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 35-40.)

Finally, plaintiff argues that defendants are not entitled to qualified immunity. 

Plaintiff contends that his right to be free from the excessive use of force, his right to receive

adequate medical care, and his right to equal protection are clearly established law. Moreover,

plaintiff argues that the defendants are not entitled to qualified immunity with respect to his state

law claims for the same reason. (Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 42-43.) 

IV. Defendants’ Reply

In reply, defense counsel argues that, aside from speculation and conclusions,

plaintiff does not provide the court with any evidence disputing defendants’ motion for summary

judgment. For example, in response to defense counsel’s argument that defendants Baker and

Money did not fail to protect him, plaintiff merely speculates that defendants Baker and Money

were acting in concert when they wrote their staff assault report but provides no evidence in

support of this contention. (Defs.’ Reply at 1-3.) 

In response to his argument that defendants Ingwerson, Money, and Peery did not

fail to supervise their subordinates, defense counsel contends that plaintiff merely speculates that

there is a connection between these defendants and the acts of their subordinates. Counsel argues

that while plaintiff contends that defendant Ingwerson “acquiesced” to her subordinates’ actions,

he has not presented the court with any evidence of a causal connection between defendant

Ingwerson and the acts of her subordinates. (Defs.’ Reply at 3.)

In response to defense counsel’s argument that defendants Garrison, Money, and

Ingwerson were not deliberately indifferent to plaintiff’s medical needs, plaintiff argues that

defendant Garrison is required by law to administer his medications and his failure to do so

caused him substantial unnecessary pain. However, counsel contends that defendant Garrison

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determined that plaintiff did not have an immediate need for his medication. Moreover, counsel

contends that plaintiff is not a medical expert and may not self-diagnose. (Defs.’ Reply at 3-5.) 

Defense counsel argues that merely speculates that all of the defendants acted in

concert to discriminate against him because they allegedly knew of and agreed with defendant

Kissinger’s “racial animus.” Counsel notes that plaintiff as the basis for defendant Kissinger’s

racial animus plaintiff relies on his claim that his cellmate told him he had to “watch out for

Hitler.” Counsel argues that even if this statement is admissible hearsay, it does not establish

that defendant Kissinger had any intent to discriminate against plaintiff based on his race on

August 23, 2001 but rather merely reflects the personal opinion of plaintiff’s cellmate. 

Moreover, counsel repeats that any statements allegedly made by the defendants as they

handcuffed plaintiff and escorted him to the program office are insufficient to state a cognizable

constitutional claim. Counsel argues that, aside from his bare speculation, plaintiff has failed to

establish any causal connection between the defendants’ alleged statements and the their alleged

actions. (Defs.’ Reply at 5.) 

Defense counsel notes that with respect to his claim that the defendants

committed a racially-motivated assault and battery on him in violation of state law, plaintiff

asserts that defendant Kissinger’s assault and battery was preceded by “racial intimidation.” 

However, aside from plaintiff’s speculation and his cellmate’s personal opinion of defendant

Kissinger, counsel notes that there is no evidence before the court of racial intimidation by any of

the defendants. (Defs.’ Reply at 6.)

Finally, defense counsel reiterates that all of the defendants are entitled to

qualified immunity. Counsel contends that plaintiff simply concludes, without any evidence, that

defendants violated his constitutional rights. However, defense counsel repeats that there is no

evidence that any of the defendants violated plaintiff’s constitutional rights. (Defs.’ Reply at 6.) 

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ANALYSIS

I. Plaintiff’s Eighth Amendment Claims

A. Excessive Use of Force

Defense counsel has not moved for summary judgment on plaintiff’s excessive

use of force claims against defendants Kissinger, Peery, and Qualls. Therefore, those claims will

be resolved at trial. As noted above, however, plaintiff has clarified that his “excessive force”

claims brought against defendants Baker and Money are actually a claim that those defendants

failed to protect him from the excessive use of force by the other defendants. Defense counsel

has moved for summary judgment on this claim against defendants Baker and Money as clarified

by plaintiff, and the court will discuss that claim below.

B. Failure to Protect

The court finds that defendants Baker and Money are not entitled to summary

judgment on plaintiff’s failure to protect claims because they have not met their initial burden of

demonstrating the absence of a genuine issue of material fact. See, e.g., Robbins v. Meecham, 60

F.3d 1436, 1442 (9th Cir. 1995) (“a prison official can violate a prisoner’s Eighth Amendment

rights by failing to intervene.”). Plaintiff claims that defendants Baker and Money failed to

protect him from the alleged use of excessive force by defendants Kissinger and Peery. To defeat

plaintiff’s claims, defense counsel has submitted declarations by defendants Baker and Money in

which they declare that they did not witness defendants Kissinger or Peery engage in the

excessive use of force, nor did they hear plaintiff scream in pain. (Defs.’ Exs. B & E.) Although

defendants Baker and Money may ultimately prevail on this version of the facts at trial, whether

defendants Kissinger and Peery engaged in excessive force remains a factual dispute at this time. 

It is undisputed that defendants Baker and Money were present when the other defendants

allegedly used excessive force against plaintiff. On defendants’ motion for summary judgment,

the court is required to believe plaintiff’s evidence and draw all reasonable inferences from the

facts before the court in plaintiff’s favor. Accordingly, the court rejects defense counsel’s

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 In plaintiff’s complaint, as well as in his deposition, he also claims that defendants 3

Kissinger and Qualls failed to protect him from defendant Peery’s alleged use of excessive force. 

(Compl. at 6-7 & 15, Pl.’s Dep. at 71.) Defense counsel acknowledges plaintiff’s claim in this

regard by arguing that defendants Kissinger and Qualls are entitled to qualified immunity with

respect to such claims. For reasons not evident to the court, however, defense counsel has only

moved for summary judgment on the merits of plaintiff’s failure to protect claims against

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argument insofar as it relies on defendants’ contested view of whether excessive force was

employed at all. 

Defense counsel also argues that even if defendants Kissinger and Peery had

engaged in the excessive use of force, plaintiff admitted in his deposition that he does not know

what defendants Baker and Money did or what they saw at the time of the incident because his

back was turned to the cell door. Defense counsel’s argument in this regard is unclear and, in

any event, unpersuasive. To the extent that counsel is arguing that defendants Baker and Money

may have attempted to intervene or protect plaintiff from any excessive force, but that plaintiff

did not see their attempts because his back was to the cell door, the argument fails because it is

unsupported by defendants’ declarations. Defendants Baker and Money declare that they were

present at the time plaintiff alleges defendants Kissinger and/or Peery used excessive force

against him but do not state that they attempted to intervene in any manner on plaintiff’s behalf. 

Nor do defendants Baker and Money declare that they were unable to intervene because, for

example, they were occupied with plaintiff’s cellmate or were too far away from the alleged

incident. Rather implicit in their declarations is that defendants Baker and Money believed that

there was no need to intervene. Finally, to the extent the court understands defense counsel’s

argument, the court finds it unpersuasive because it contradicts defendants’ long-held position

that defendants Kissinger and Peery did not use excessive force in this case, and by extension,

defendants Baker and Money had no need to protect plaintiff or intervene on his behalf.

Accordingly, the court concludes that defendants Baker and Money are not

entitled to summary judgment in their favor on plaintiff’s Eighth Amendment failure to protect

claims.

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defendants Baker and Money. In any event, for the reasons discussed herein, plaintiff’s failure to

protect claims against defendants Baker and Money should proceed to trial along with the failure

to protect claims against defendants Kissinger and Qualls. See also infra Section V. 

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C. Inadequate Medical Care 

The court finds that defendants Garrison, Ingwerson, and Money are not entitled

to summary judgment on plaintiff’s inadequate medical care claims because they have not met

the initial burden of demonstrating the absence of a genuine issue of material fact. As an initial

matter, the parties do not dispute that plaintiff’s high blood pressure and back spasms constitute

serious medical conditions. See McGuckin, 974 F.2d at 1059-60 (“The existence of an injury

that a reasonable doctor or patient would find important and worthy of comment or treatment; the

presence of a medical condition that significantly affects an individual’s daily activities; or the

existence of chronic and substantial pain are examples of indications that a prisoner has a

‘serious’ need for medical treatment.”) In this case, both parties have submitted evidence

demonstrating that plaintiff has sought and received medical care, including his prescription

medication, at HDSP for these medical conditions on multiple occasions. (Pl.’s Compl., Exs. D

& I, Pl.’s SUDF 9 & Attach. 3, Defs.’ Ex. I.) Accordingly, resolution of this aspect of

defendants’ motion for summary judgment hinges on whether defendants Garrison, Ingwerson,

and Money responded to plaintiff’s serious medical conditions with deliberate indifference. 

Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 

Plaintiff claims that defendant Garrison was deliberately indifferent to his medical

needs because he refused to examine plaintiff or allow him to see a doctor and refused to retrieve

his prescription medication for pain and high blood pressure while plaintiff was detained in the

holding cage. Defense counsel has submitted a declaration by defendant Garrison in which he

states that he examined plaintiff in the program office and determined at that time that plaintiff

did not have a medical need for his prescription medications. (Defs.’ Ex. G.) 

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Defendant Garrison’s conclusory declaration does not demonstrate the absence of

a genuine issue of material fact with respect to plaintiff’s claim alleging inadequate medical care. 

First, in his declaration defendant Garrison does not explain what his medical qualifications are

or whether he was adequately trained to determine whether plaintiff had a medical need for his

prescription medication while being detained in the holding cage. See Ortiz v. City of Imperial,

884 F.2d 1312, 1314 (9th Cir. 1989) (“access to medical staff is meaningless unless that staff is

competent and can render competent care”). In addition, defendant Garrison does not explain

how or why he determined plaintiff did not have a medical need for his prescription medication. 

Defendant Garrison has not referred to or attached to his declaration any supporting

documentation, such as his medical report or any of plaintiff’s medical records to demonstrate,

for example, that plaintiff’s prescription did not require him to take his medication at that time. 

Nor has defendant Garrison indicated that he ever spoke with plaintiff’s treating physician or any

other physician about plaintiff’s medical needs where his prescription medication is concerned. 

In fact, defendant Garrison’s declaration does not even suggest that he bothered to look at

plaintiff’s medical records to determine whether plaintiff had a medical need for his prescription

medication. 

Defense counsel has also submitted to the court a declaration by Chief Medical

Officer Swingle in which she declares that she examined plaintiff’s medical records and

determined that plaintiff did not have a medical need for his prescription medication. However,

Dr. Swingle has not examined plaintiff and was not present at the time of the alleged events in

this case. Moreover, similar to defendant Garrison’s declaration, Dr. Swingle’s declaration does

not explain how or why she determined plaintiff did not have a medical need for his prescription

medication. Nor does Dr. Swingle indicate that she ever spoke with plaintiff’s treating physician

about his medical needs where his prescription medication is concerned. 

It is undisputed that the medications were prescribed for plaintiff by prison

doctors. Having been prescribed, there was presumably a medical need for plaintiff to take the

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 Even if defendant Garrison had met his initial burden of demonstrating the absence of a 4

genuine issue of material fact, plaintiff has submitted sufficient evidence to refute that evidence

thereby precluding summary judgment in defendant Garrison’s favor. See e.g., Estelle, 429 U.S.

at 104-05 (deliberate indifference may manifest “by prison doctors in their response to the

prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care

or intentionally interfering with the treatment once prescribed”); Lopez v. Smith, 203 F.3d 1122,

1132 (9th Cir. 2000) (a prisoner may establish deliberate indifference by showing that a prison

official intentionally interfered with his medical treatment); Wakefield v. Thompson, 177 F.3d

1160, 1165 (9th Cir. 1999) (“a prison official acts with deliberate indifference when he ignores

the instructions of the prisoner’s treating physician or surgeon.”). Specifically, according to his

sworn deposition testimony, plaintiff repeatedly complained to defendant Garrison that he was

experiencing wrist pain and back spasms and that he needed his prescription medications for his

high blood pressure and pain, which were readily available in his cell. In addition, according to

plaintiff’s deposition testimony, as well as defendant Garrison’s own medical report which

plaintiff has submitted, Garrison observed that plaintiff could not stand properly in his cell. 

Nevertheless, defendant Garrison refused to give plaintiff a physical examination or retrieve his

prescription medication and instead told him “Well, you can get on the doctors line.” (Pl.’s Dep.

at 75-84, Pl.’s SUDF 4 & Attach. 3.) See, e.g., McGuckin, 974 F.2d at 1059 (a medical need is

serious “if the failure to treat the prisoner’s condition could result in further significant injury or

the ‘unnecessary and wanton infliction of pain.’” (quoting Estelle, 429 U.S. at 104)); see also,

e.g., Canell v. Bradshaw, 840 F. Supp. 1382, 1393 (D. Or. 1993) (the Eighth Amendment duty to

provide medical care applies “to medical conditions that may result in pain and suffering which

serve no legitimate penological purpose.”), aff'd, 97 F.3d 1458 (9th Cir. 1996). 

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medications. The conclusory declarations submitted by the defense suggesting otherwise do not

demonstrate the absence of a genuine issue of material fact. Accordingly, the defendants are not

entitled to summary judgment in their favor in this respect.4

Plaintiff also claims that defendants Ingwerson and Money were deliberately

indifferent to his medical needs because they refused to retrieve his prescription medication for

pain and high blood pressure while he was in the holding cage. In support of the motion for

summary judgment defense counsel has submitted declarations from defendants Ingwerson and

Money. However, neither of the declarations addresses plaintiff’s allegations regarding

defendants’ refusal to provide him with his prescription medication. Contrary to counsel’s

argument, plaintiff has alleged much more than defendants Ingwerson and Money “aided and

abetted” defendant Garrison’s refusal to provide him with adequate medical care. Rather,

plaintiff has expressly alleged in his verified complaint that defendants Money and Ingwerson

made no attempt to get his prescription medication even after he repeatedly asked them to do so. 

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(Compl. at 20.) As noted above, prison officials may manifest deliberate indifference by

“denying or delaying access to medical care or intentionally interfering with the treatment once

prescribed.” See Estelle, 429 U.S. at 104-05.

Accordingly, the court concludes that defendants Garrison, Ingwerson, and Money

are not entitled to summary judgment in their favor on plaintiff’s Eighth Amendment inadequate

medical care claims. 

II. Plaintiff’s Equal Protection Claims

The court finds that the defendants have borne their initial burden of

demonstrating that there is no genuine issue of material fact with respect to plaintiff’s equal

protection claims. In this regard, plaintiff claims that defendants deprived him of equal

protection when they subjected him to the excessive use of force, failed to protect him, and

refused to provide him with adequate medical care, all because he is African American. In

support of the motion for summary judgment, defense counsel has submitted the declarations of

defendants Kissinger, Baker, Money, Qualls, and Peery in which they state that they have never

intimidated, used or threatened the use of violence, or directed any racial remarks towards

plaintiff. These defendants, as well as defendant Garrison, also declare that they have never

witnessed any correctional staff intimidate, use or threaten the use of force, or direct any racial

remarks towards plaintiff. Finally, all of the defendants declare that they are not, and have never

been, members of the Ku Klux Klan. (Defs. Exs. A-E, G.) Defense counsel has also submitted a

declaration from defendant Ingwerson in which she declares that she has never seen anyone

intimidate or commit acts of violence against plaintiff on account of him being African

American. She also declares that she is not and never has been a member of the Ku Klux Klan. 

(Defs.’ Ex. F.) Defendants’ evidence in this regard establishes that their alleged unlawful

actions, if any, were not racially motivated or based plaintiff’s race. Given this evidence, the

burden shifts to plaintiff to establish the existence of a genuine issue of material fact with respect

to this claim. 

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The court has considered plaintiff’s verified complaint, his opposition to the

pending motion for summary judgement, and his deposition testimony. In his complaint plaintiff

explains that 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, directing racial slurs at them, and withholding and

contaminating their food. (Compl. at 5 & 25.) Plaintiff further alleged that two days after

inmates filed this group appeal, defendants Kissinger and Peery engaged in racially-motivated

excessive use of force against him while defendants Baker, Qualls and Money stood by and did

nothing. (Id. at 15.) Plaintiff contends that as defendants Peery and Qualls escorted him to the

program office, he tried to explain to them that defendant Kissinger was a racist, but they

responded by saying in concert “That’s the way we do it,” and jerked his arms up above his head. 

Plaintiff contends that they also referred to themselves as Ku Klux Klansmen. (Id. at 26, Pl.’s

Dep. at 58.) 

At his deposition plaintiff testified that defendant Peery passed by his holding cell

and said “Hey, you look like a monkey,” and “Hey, you look like you’ve been playing in the mud

with the monkeys.” (Pl.’s Dep. at 65.) Plaintiff further testified that defendants Ingwerson and

Money also uttered racist comments directed at him. Specifically, plaintiff told defendant

Ingwerson that he knew she had read complaints about defendant Kissinger’s racial misconduct,

and her response was “you people get together. . . .” However, before she could finish her

response defendant Money told plaintiff to leave his lieutenant alone and claimed “All you

people liars anyhow.” (Id. at 67.)

Finally, plaintiff explains that defendant Garrison refused to retrieve his

prescription medication and treat him, but treated defendant Kissinger’s hand injury. According

to plaintiff, defendant Garrison treated defendant Kissinger’s hand because he is white and

refused to treat plaintiff because he is African-American. Plaintiff contends that defendant 

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Garrison’s lack of excuse for obtaining his medication is evidence that he denied plaintiff

adequate medical care because of his race. (Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 29.) 

As noted above, in considering defendants’ motion for summary judgment the

court is required to believe plaintiff’s evidence and draw all reasonable inferences from the facts

before the court in plaintiff’s favor. Drawing all reasonable inferences in plaintiff’s favor, the

court finds that plaintiff has submitted sufficient evidence to create a genuine issue of material

fact precluding summary judgment in favor of defendants Kissinger, Peery, Qualls, Ingwerson,

and Money on plaintiff’s equal protection claim. Defense counsel is correct that verbal

harassment and abuse do not violate the Constitution and do not give rise to a cognizable claim

under § 1983. See Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004); Oltarzewski v.

Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (vulgar language and verbal harassment do not state

a constitutional deprivation under § 1983). However, defendants’ alleged use of racial slurs and

other “racially tinged” remarks could convince a reasonable trier of fact by a preponderance of

the evidence that defendants’ conduct in allegedly violating plaintiff’s constitutional rights were

racially motivated. See Serrano, 345 F.3d at 1082-83 (reversing grant of summary judgment

because officer’s alleged statements that he “[didn’t] know what black people think” and that “he

was treating [Serrano] like all the rest . . . and that [Serrano] was ‘not O.J. Simpson or Johnnie

Cochran’” constituted evidence of discriminatory intent and created a genuine issue of material

fact as to whether the officer violated the Equal Protection Clause); cf. Freeman v. Arpaio, 125

F.3d 732, 738 n.6 (9th Cir. 1997) (“Although not itself rising to the level of a constitutional

violation, prison officials’ use of abusive language directed at an inmate’s religion may be

evidence that prison officials acted in an intentionally discriminatory manner.”), overruled in part

on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). 

On the other hand, the court finds that plaintiff has failed to submit sufficient

evidence raising a genuine issue of material fact with respect to defendants Baker and Garrison in

this regard. At most, plaintiff alleges in his complaint that defendant Baker stood by and did

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nothing while defendants Kissinger and Peery allegedly engaged in excessive force against him. 

Even assuming plaintiff’s allegations to be true, plaintiff has not provided any evidence to show

that defendant Baker intentionally failed to protect him due to plaintiff’s race. Nor has plaintiff

provided any evidence tending to show that defendant Baker knew defendants Kissinger and

Peery were in any way racially motivated when they allegedly engaged in excessive force against

plaintiff. Similarly, plaintiff alleges that defendant Garrison provided defendant Kissinger with

adequate medical care, but he failed to examine plaintiff or provide him with his prescription

medication. Plaintiff assumes that this difference in treatment was based upon his race. (Pl.’s

Dep. at 77.) However, plaintiff’s comparison of the treatment of defendant Kissinger by

Garrison to the treatment Garrison accorded plaintiff misses the mark because defendant

Kissinger and plaintiff are not similarly situated. Moreover, even assuming plaintiff’s allegations

to be true, plaintiff has not provided any evidence tending to show that defendant Garrison

intentionally failed to provide him with medical care because of his race. 

Accordingly, the court concludes that defendants Kissinger, Peery, Qualls,

Ingwerson, and Money are not entitled to summary judgment in their favor on plaintiff’s

Fourteenth Amendment equal protection claims. The court also concludes, however, that

defendants Baker and Garrison are entitled to summary judgment in their favor with respect to

plaintiff’s Fourteenth Amendment equal protection claims against them. 

III. Plaintiff’s Supervisory Claims 

The court finds that defendants Ingwerson, Money, and Peery have borne their

initial burden of demonstrating that there is no genuine issue of material fact with respect to

plaintiff’s supervisory liability claims. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

(“A supervisor is only liable for constitutional violations of his subordinates if the supervisor

participated in or directed the violations, or knew of the violations and failed to act to prevent

them.”). In this regard, plaintiff claims that defendants Ingwerson, Money, and Peery failed to

properly supervise their subordinates on August 23, 2001. In moving for summary judgment,

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defense counsel has submitted the declarations of defendants Ingwerson, Money, and Peery. 

According to those declarations as well as the undisputed facts of this case, these defendants

were not present at plaintiff’s cell when defendant Kissinger allegedly engaged in the excessive

use of force against plaintiff. In addition, it is undisputed that defendant Ingwerson was not

present at plaintiff’s cell when defendant Peery allegedly used excessive force against plaintiff. 

Moreover, as noted above, defendants Ingwerson, Money, and Peery declare that they have never

witnessed any correctional staff intimidate, use or threaten the use of force, or direct any racial

remarks towards plaintiff. Defendants’ evidence establishes that they did not participate in or

direct any constitutional violations nor did they know of any such violations and fail to prevent

them as supervisors. Given this evidence, the burden shifts to plaintiff to establish the existence

of a genuine issue of material fact with respect to these claims. 

The court has considered plaintiff’s verified complaint, his opposition to the

pending motion for summary judgement, and his deposition testimony and finds that plaintiff has

failed to submit any evidence disputing that submitted by defendants. Specifically, plaintiff

argues that defendant Peery was aware of plaintiff’s ongoing complaints about defendant

Kissinger because Peery reviewed plaintiff’s inmate appeal HDSP-C-01-03264. Therein,

plaintiff complained about defendant Kissinger passing by his cell in administrative segregation

and dangling handcuffs in front him saying “remember these.” (Pl.’s Attach. 5.) The parties do

not dispute that defendant Peery did in fact review HDSP-C-01-03264. However, defendant

Peery was not assigned the appeal until October 17, 2001, and he did not complete the appeal

review until November 21, 2001. Even if the appeal could serve as evidence that defendant

Peery knew of defendant Kissinger’s ongoing violations, Peery reviewed inmate appeal HDSPC-01-03264 well after defendant Kissinger’s alleged use of excessive force took place. Even if

the court goes as far back as August 2001, when plaintiff and his fellow inmates filed their group 

appeal alleging that defendant Kissinger improperly targets African American inmates, defendant

Peery was not assigned that appeal until September 4, 2001, and did not complete the appeal

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review until October 4, 2001. Again, that was well after defendant Kissinger’s alleged use of

excessive force against plaintiff took place. 

Finally, plaintiff has provided no evidence to the court demonstrating that either

defendants Ingwerson or Money personally participated in the violation of plaintiff’s

constitutional rights or directed any of their subordinates to do so or that they knew of such civil

rights violations by their subordinates and failed to act to prevent them. Plaintiff merely

speculates that defendant Ingwerson knew of defendant Kissinger’s alleged prior raciallymotivated misconduct. Plaintiff’s mere speculation, however, is insufficient to raise a genuine

issue of material fact precluding summary judgment in defendant Ingwerson’s favor. Likewise,

plaintiff only speculates that defendants Ingwerson and Money heard defendant Peery utter racist

comments directed at plaintiff him while in the holding cell. Again, such speculation is not

enough to defeat summary judgment. Moreover, even if defendants Ingwerson and Money heard

defendant Peery utter such comments, defendants may only be held liable for failing to act in

connection with constitutional violations of their subordinates. As noted above, verbal

harassment and abuse alone do not constitute constitutional violations. See Austin, 367 F.3d at

1171-72; Oltarzewski, 830 F.2d at 139. To be sure, racial slurs or racially tinged remarks can

constitute evidence that a defendant’s alleged violations of plaintiff’s constitutional rights were

racially motivated. See Serrano, 345 F.3d at 1083. However, defendant Ingwerson and Money’s

overhearing of such remarks by defendant Peery is not evidence that they personally participated

in, directed, or knew of and failed to prevent, any specific constitutional violations by defendant

Peery. Finally, a supervisory defendant may only be held liable if there is a sufficient causal

connection between the supervisor and the alleged constitutional violations. Here, there is no

evidence suggesting a causal connection between defendant Ingwerson and Money’s alleged

conduct and the alleged constitutional violations in this case. See Fayle, 607 F.2d at 862;

Mosher, 589 F.2d at 441. 

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Accordingly, the court concludes that defendants Ingwerson, Money, and Peery

are entitled to summary judgment in their favor with respect to plaintiff’s supervisory capacity

claims. 

IV. Plaintiff’s State Law Claims

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

use of force and equal protection claims. As discussed above, whether defendants Kissinger and

Peery used excessive force is a disputed factual issue. Similarly, whether defendants Kissinger

and Peery’s alleged use of excessive force was racially motivated remains a disputed issue of

fact. Drawing all reasonable inferences from the evidence before the court in plaintiff’s favor,

the court finds that triable issues of material fact exist as to plaintiff’s state law claims as well. In

this regard, a reasonable jury could conclude that defendants Kissinger and Peery violated the

Ralph Civil Rights Act and the Bane Civil Rights Act. See, e.g., 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. . . .”). Cf. 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). 

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 Defense counsel argues that defendant Kissinger is entitled to qualified immunity 5

from plaintiff’s failure to protect claims because, just as is the case for defendants Baker and

Money, defendant Kissinger did not witness defendant Peery use excessive force and plaintiff

admits that he could not see defendant Kissinger at the time in question because his back was to

the cell door. Counsel also summarily argues that defendant Qualls is entitled to qualified

immunity because there is no evidence that he failed to protect plaintiff from defendant Peery’s

alleged use of excessive force. Presumably, counsel’s argument on behalf of defendant Qualls is

the same as his argument on behalf of defendants Baker, Money, and Kissinger. For the same

reasons the court rejected those arguments advanced on behalf of defendants Baker and Money,

the court rejects them with respect to defendants Kissinger and Qualls. See supra Section I.B. 

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Accordingly, the court concludes that defendants Kissinger and Peery are not

entitled to summary judgment in their favor with respect to plaintiff’s state law claims. 

V. Qualified Immunity

As noted above, the facts alleged in this case taken in the light most favorable to

plaintiff are sufficient, if proven, to demonstrate that defendants failed to protect plaintiff and 5

failed to provide him with adequate medical in violation of the Eighth Amendment. The facts

alleged by plaintiff are also sufficient, if proven, to demonstrate that defendants deprived him of

equal protection under the law in violation of the Fourteenth Amendment.

The state of the law in 2001 clearly would have given defendants fair warning that

their conduct was unconstitutional. 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)). By 2001, it was well established that prison officials have a duty to protect

prisoners from violence. Farmer, 511 U.S. at 833. In this case, defendants Baker, Money,

Kissinger, and Qualls were on notice that they could not simply stand by as other officers

engaged in the excessive use of force against plaintiff. Similarly, by 2001, it was well

established that prison officials could not be deliberately indifferent to a prisoner’s serious

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medical needs or deny, delay, or intentionally interfere with medical treatment for a prisoner’s

serious medical needs. Estelle, 429 U.S. at 104-06. Here, defendants Garrison, Money, and

Ingwerson were on notice that they could not ignore plaintiff’s medical needs such as seeing a

doctor and being allowed to take his prescription medication. In 2001, it was also well

established that prison officials could not discriminate against prisoners based on their race. 

Wolff, 418 U.S. at 556. Thus, defendants Kissinger, Peery, Qualls, Ingwerson, and Money were

on notice that they could not deprive plaintiff of his constitutional rights because he is AfricanAmerican. 

Accordingly, the court concludes that defendants are not entitled to summary

judgment in their favor with respect to their affirmative defense of qualified immunity. 

OTHER MATTERS

Also pending before the court are several of plaintiff’s requests. First, plaintiff

has requested appointment of a medical expert or, in the alternative, an order excluding Dr.

Swingle’s declaration from evidence as unreliable. Defendants have filed an opposition to the

request, arguing that there is no evidence that Dr. Swingle’s declaration is unreliable and, in any

event, the court cannot consider the credibility of a witness when ruling as a matter of law. 

Plaintiff has filed a reply, reiterating his view that the court should exclude Dr. Swingle’s

declaration.

The expenditure of public funds on behalf of an indigent litigant is proper only

when authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma

pauperis statute does not authorize the expenditure of public funds for a medical expert. See 28

U.S.C. § 1915. As discussed above, the court will recommend that defendants’ motion for

summary judgment on plaintiff’s inadequate medical care claim be denied notwithstanding Dr.

Swingle’s declaration. Accordingly, the court will deny plaintiff’s request for the appointment of

a medical expert or for an order excluding Dr. Swingle’s declaration. 

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Second, plaintiff has requested that judicial notice be taken of his statement of

undisputed facts and certain exhibits attached thereto. Judicial notice of adjudicative facts is

appropriate with respect to matters that are beyond reasonable dispute in that they are either

generally known or capable of accurate and ready determination by resort to a source whose

accuracy cannot reasonably be questioned. See Fed. R. Evid. 201 and advisory committee notes. 

Plaintiff’s request is both improper and unnecessary. Accordingly, the court will deny it.

Plaintiff next requests the “document submission sheet” that is utilized to submit

exhibits into evidence at trial. The court is not clear what document plaintiff is requesting. 

Moreover, the instant case is not yet scheduled for trial. At the appropriate time, the court will

instruct plaintiff on how to file and mark his trial exhibits. Accordingly, the court will deny

plaintiff’s request at this time .

Finally, plaintiff has requested appointment of an independent arbitrator to help

settle this case. If the assigned district judge adopts these findings and recommendations, the

undersigned will require the parties to file pretrial statements. In their pretrial statements, the

parties will have an opportunity to express their desire or lack thereof for a settlement

conference. If appropriate, the court will schedule a settlement conference thereafter. 

Accordingly, the court will deny plaintiff’s request.

CONCLUSION

IT IS HEREBY ORDERED that:

1. Plaintiff’s November 21, 2008 request for appointment of a medical expert or,

in the alternative, an order excluding Dr. Swingle’s declaration (Doc. No. 149) is denied; 

2. Plaintiff’s January 26, 2009 and January 30, 2009 requests for judicial notice

(Doc. Nos. 156 & 160) are denied; 

3. Plaintiff’s February 11, 2009 request for a document submission sheet (Doc.

No. 166) is denied; and 

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4. Plaintiff’s March 9, 2009 request for an independent arbitrator (Doc. No. 171)

is denied.

IT IS HEREBY RECOMMENDED that defendants’ October 9, 2008, motion for

summary judgment (Doc. No 142) be granted in part and denied in part as follows:

1. Defendants’ motion for summary judgment with respect to plaintiff’s failure to

protect claims against defendants Baker and Money be denied;

2. Defendants’ motion for summary judgment with respect to plaintiff’s

inadequate medical care claims against defendants Garrison, Money, and Ingwerson be denied;

3. Defendants’ motion for summary judgment with respect to plaintiff’s equal

protection claims be denied as to defendants Kissinger, Peery, Qualls, Ingwerson, and Money,

but be granted as to defendants Baker and Garrison;

4. Defendants’ motion for summary judgment on plaintiff’s supervisory capacity

claims against defendants Ingwerson, Money, and Peery be granted;

5. Defendants’ motion for summary judgment with respect to plaintiff’s state law

claims against defendants Kissinger and Peery be denied; and

6. Defendants’ motion for summary judgment with respect to their affirmative

defense of qualified immunity be denied.

These findings and recommendations are submitted to the United States District

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

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

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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: July 13, 2009.

DAD:9

davi0878.57(2)

Case 2:04-cv-00878-TLN-DAD Document 175 Filed 07/14/09 Page 40 of 40