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 On May 13, 2005, the court ordered that service of process was appropriate for 1

defendants Clement, Davidge, Simmerson, Stevens and Trullinger under 28 U.S.C. § 1915A(b),

and only with respect to plaintiff’s Eighth Amendment claims against those defendants. The

court did not find that service of process was warranted with respect to plaintiff’s Fourteenth

Amendment or state law claims, which is why the court will not address defendants’ argument

that they are entitled to summary judgment with respect to those claims. Mot. at 8:19-9:14.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID EARL WALKER,

Plaintiff, No. CIV S-04-1671 GEB KJM P

vs.

K. CLEMENT, et al., ORDER AND

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding with an action for violation of civil rights

under 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment. Plaintiff has 1

filed a motion to compel discovery.

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I. Summary Judgment

A. Summary Judgment Standard

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

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

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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

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).

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On June 8, 2005, the court advised plaintiff of the requirements for opposing a

motion under Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d

952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry,

849 F.2d 409 (9th Cir. 1988).

B. Plaintiff’s Allegations

Plaintiff alleges as follows in his August 16, 2004 complaint, which is signed

under the penalty of perjury. On January 20, 2004, defendant Clement ordered another

correctional officer to open plaintiff’s cell so that defendants Clement, Davidge, Simmerson,

Trullinger and Stevens could enter. When defendants entered, plaintiff had just awakened from a

heavy sleep induced by medication plaintiff takes for mental illness. After Clement entered, he

ordered plaintiff to his knees. Plaintiff did not provoke defendants. Plaintiff yelled to the

defendants that they were violating procedure by entering plaintiff’s cell. Clement and Davidge

then attacked plaintiff. Clement attempted to place plaintiff in a head lock and choke-hold. 

Clement also punched plaintiff in the mouth and Davidge punched plaintiff in the body. Plaintiff

did not fight back. Defendant Simmerson used pepper spray against plaintiff during this

incident. Simmerson disregarded the fact that plaintiff has severe asthma. Defendants Trullinger

and Stevens failed to stop Clement, Davidge and Simmerson. After plaintiff was placed in

handcuffs, defendants Clement, Davidge and Simmerson stepped on plaintiff’s back and kicked

him several times.

As a result of defendants’ actions, plaintiff suffered the following injuries:

1. Abrasion to the right side of his face, his left shoulder and both knees;

2. A swollen lip; and 

3. Extreme pain in his back and spine for which plaintiff was prescribed pain

medication.

Compl. at 6:10-10:19. 

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On May 13, 2005, the court found that plaintiff’s allegations state claims for relief

under the Eighth Amendment of the United States Constitution.

C. Defendants’ Arguments And Analysis

1. Excessive Force

Defendants argue that defendants Clement, Davidge and Simmerson are entitled

to summary judgment with respect to plaintiff’s Eighth Amendment claims against them. 

The Eighth Amendment prohibits prison officials from wantonly and

unnecessarily inflicting pain on prisoners. Whitley v. Albers, 475 U.S. 312, 319 (1986). 

Plaintiff has presented evidence in his verified complaint that defendants Clement, Davidge and

Trullinger violated plaintiff’s right to be free from excessive force by inflicting pain upon him

without any justification. As noted above, plaintiff alleges Clement, Davidge and Trullinger

punched plaintiff, exposed plaintiff to pepper spray, stepped on plaintiff and kicked him. 

Defendants present evidence that their acts of violence were provoked by plaintiff, and argue that

there is no evidence before the court to show that defendants acted maliciously or sadistically. 

See Mot., Ex. A. Defendants’ evidence consists of incident reports memorializing their account

of what happened on January 20, 2004, and medical records documenting plaintiff’s injuries. Id. 

Plaintiff’s deposition transcript, also provided, id., Ex B, contains no testimony by plaintiff that

concedes that defendants’ version of what happened on January 20 , as relevant to this case, is th

correct.

Thus, there is a genuine issue of material fact with respect to whether the force

used upon plaintiff was legally justified and did not amount to a violation of the Eighth

Amendment. Defendants are not entitled to summary judgment with respect to plaintiff’s Eighth

Amendment claims against Clement, Davidge and Trullinger.

Nor are defendants Clement, Davidge and Trullinger entitled to immunity from

plaintiff’s Eighth Amendment claims at this point in the case as also suggested by defendants. 

See Mot. at 9:16-11:2. Government officials performing discretionary functions generally are

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 In their reply, defendants argue they should be granted summary judgment because

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plaintiff failed to comply with Local Rule 56-260(b) by not submitting a proper statement of

undisputed facts. Reply at 2:14-22. Defendants fail to cite any authority for the proposition that

the court has discretion to grant defendants summary judgment for plaintiff’s failure to comply

with this rule. In any case, the court declines to recommend that defendants be granted summary

judgment for such a rules violation because the record before the court does not demonstrate that

6

shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known. 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, defendants were on prior notice that

they could not wantonly and unnecessarily inflict pain on plaintiff as a result of the Supreme

Court’s decision in the Whitley case; the genuine issue of material fact as to whether such

infliction of pain occurred precludes a grant of immunity here.

2. Failure To Protect 

Plaintiff alleges that defendants Trullinger and Stevens failed to protect him from

the actions of the other defendants. The Eighth Amendment’s prohibition on cruel and unusual

punishment imposes on prison officials, among other things, a duty to “take reasonable measures

to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). An inmate’s Eighth Amendment rights are

violated by a prison official if that official exposes an inmate to a “substantial risk of serious

harm,” while displaying “deliberate indifference” to that risk. Id. at 834. 

Defendants’ only argument with respect to plaintiff’s failure to protect claims is

that because the actions of Clement, Davidge and Simmerson were justified, there was no reason

for Trullinger and Stevens to protect plaintiff from their colleagues’ actions. In light of the fact

that the record discloses a factual dispute as to whether Clement, Davidge and Simmerson acted

with justification, this argument should be rejected. Despite defendants’ argument to the

contrary, defendants Trullinger and Stevens also are not immune from suit under the doctrine of

qualified immunity given that Farmer v. Brennan was well-established law long before the events

underlying the instant complaint occurred. 

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dismissal is warranted, particularly in this pro se case. Cf. Ferdik v. Bonzelet, 963 F.2d 1258,

1260-61 (9th Cir. 1992) (reviewing standards applicable to dismissal, including in pro se cases). 

 Defendants also argue that they should not have to turn over documents that are

3

privileged under California law. In federal court, however, documents will only be deemed

privileged, and therefore not discoverable, if the documents are privileged under federal law. 

Fed. R. Evid. 501. Defendants make no argument that any document sought by plaintiff is

privileged under federal law.

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D. Conclusion

For all the foregoing reasons, the court will recommend that defendants’ motion

for summary judgment be denied.

II. Plaintiff’s Motion To Compel 

Plaintiff asks that the court compel defendants to produce documents based on

two requests to produce.

A. Request To Produce #1

Request to produce #1 reads as follows, in verbatim transcription:

You are requested to produce all staff complaints on defendants

Clement, Davidge, Simmerson, Stevens, Trullinger, filed on them

in addition to all regular inmate’s 602 appeal grievance alleging

racial assaults, cell extraction; and failure to stop racial

intimidation or assault, or any racial harassment and racial

targeting of any blacks at (H.D.S.P). Include any adverse actions

or discipline imposed any defendants while employed at (H.D.S.P)

and all written response to all complaint. Also include any and all

written internal opinions; or findings of fact reached by (H.D.S.P)

as a result of any and all investigations at (H.D.S.P) Submit all

internal documents compiled as a result of any completed

investigation by (H.D.S.P) based on racial allegations of any racial

assault, cell extraction, threats of racial assault, intimidation based

on race and harassment based on race. . . 

Mot. at 21:27-22:23.

Defendants argue, among other things, that plaintiff’s request is overbroad and

that plaintiff seeks documents that are not likely to lead to the discovery of admissible evidence. 

Mot. at 31:17-28; Opp’n at 4:14-23. For the most part, these objections are well taken. 3

However, the court will order defendants to submit to the court, for in camera review, all

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documents maintained by defendants indicating that any defendant in this action was either

involved in, or allegedly involved in the use of excessive force against an inmate. To the extent

plaintiff seeks documents other than these, plaintiff seeks documents that are not likely to lead to

the discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1). 

B. Request To Produce #2

Request to produce #2 reads as follows, in verbatim transcription:

You are to provide Plaintiff with High Desert State Prison;

operations procedure # 0-P-118; specially dealing with excessive

use of force; tactical cell extraction. All data should be provided in

full and in a separate binder and in chronological order and

sequentially numbered. 

Mot. at 23:5-11.

Defendants, citing a number of objections, refused to turn over any documents in

response to this request. Id. at 32:6-15.

Plaintiff asks that the court compel defendants to turn over the document

described in request #2 because it is “highly relevant to plaintiff’s case,” without exactly

describing how it is relevant. Mot. at 14:2-24. Plaintiff does reference several exhibits in

support of his position, including an Exhibit E, which is a second level response to a grievance

plaintiff filed; the second page of the response indicates that defendant Clement was found to

have violated departmental policy, although he was determined not to have used unnecessary and

unreasonable force. Id. at 46. Plaintiff does not assert that the document requested authorizes

the kind of unprovoked and unnecessary force as plaintiff alleges occurred in this case, but does

say it is needed “to support” the information contained in Exhibit E, among other exhibits. Mot.

at 14:16-20. 

Defendants argue that the procedure requested relates to cell extraction tactics

only, not excessive force policy, and in any case contains sensitive information because it

discloses procedures used to extract inmates from cells; if disclosed to the inmate population, the

information could be used to frustrate extraction efforts and to anticipate correctional officers’

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maneuvers in a cell in a manner that could increase the risk of harm to both inmates and officers. 

Opp’n at 7:4-11. Defendants do not suggest that, if the allegations in plaintiff’s complaint are

proven, defendants would somehow be absolved of liability based on what is in the procedure

plaintiff seeks. 

Assuming the requested procedure conforms to defendants’ description, it is likely

this court will exercise its discretion to deny plaintiff’s motion to compel the document. Before

making a final determination, however, the court will order defendants to submit to the court, for

in camera review, a complete copy of Operations Procedure # 0-P-118. Cf. Hallett v. Morgan,

296 F.3d 732, 751 (9th Cir. 2002).

III. Motion To Continue

The parties have asked that the dates established for the filing of pretrial

statements, pretrial conference and trial be vacated and new dates be established. Good cause

appearing, the court will vacate the dates requested; those dates will be re-scheduled, if

necessary, after the district judge assigned to this case rules on plaintiff’s motion for summary

judgment. 

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff’s December 23, 2005 motion to compel discovery is granted in part

and denied in part as follows:

A. Within fifteen days of this order, defendants shall provide to the

chambers of the undersigned, for in camera review, all documents

maintained by defendants indicating that any defendant in this action either

has been involved in, or allegedly involved in, the use of excessive force

against an inmate, as well as a complete copy of Operations Procedure

 # 0-P-118 in effect on January 20, 2004. 

B. Plaintiff’s motion is denied in all other respects.

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2. Plaintiff’s May 15, 2006 motion to continue is granted. The dates established

in the court’s September 2, 2005 scheduling order for the filing of pretrial statements, pretrial

conference and trial are vacated. Those dates will be re-established, if necessary, after the district

judge assigned to this case rules on defendants’ pending motion for summary judgment.

 IT IS HEREBY RECOMMENDED that defendants’ February 24, 2006 motion

for summary judgment 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 

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: August 8, 2006.

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walk1671.57

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