1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISMAIL MORA, No. 2:23-CV-0155-DJC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CHRISTOPHER DESIMONE, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendants’ unopposed motion for summary 19 judgment. See ECF No. 43. 20 The Federal Rules of Civil Procedure provide for summary judgment or summary 21 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 22 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 23 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 24 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 25 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 26 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 27 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 28 / / / 1 moving party

2 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 4 genuine issue of material fact.

5 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 6 7 If the moving party meets its initial responsibility, the burden then shifts to the 8 opposing party to establish that a genuine issue as to any material fact actually does exist. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of this factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material, in support of its contention that the 13 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 14 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 15 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 17 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 19 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 21 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 22 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 23 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 24 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 27 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 28 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 1 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 2 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 4 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 5 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 6 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 7 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 8 imposed.” Anderson, 477 U.S. at 251. 9 10 I. BACKGROUND 11 A. Plaintiff’s Allegations 12 This action proceeds on Plaintiff Ismail Mora’s verified original prisoner civil rights 13 complaint under 42 U.S.C. § 1983 filed on January 24, 2023. See ECF No. 1. Plaintiff names the 14 following as defendants: (1) Christopher DeSimone,1 Correctional Officer, (2) Frank Neri, 15 Correctional Officer, (3) Shawn Overby, Correctional Officer, and (4) the State of California. See 16 id. at 2. 17 Plaintiff alleges that Defendant DeSimone assaulted Plaintiff when he walked over to 18 Plaintiff and swung his fist multiple times. See id. at 3. Plaintiff tried to defend himself, and so 19 Defendant Neri jumped in and began punching Plaintiff. See id. Both defendants took Plaintiff to the 20 ground and continued to assault Plaintiff with their fists. See id. Defendant Overby approached 21 Plaintiff and hit him while he was defenseless with his hands behind his back. See id. Plaintiff alleges 22 that Defendants falsified reports, which hurt Plaintiff’s life (sic). See id. 23 Plaintiff requests relief from the Court for injury compensation, which includes any 24 mental health treatment. See id. Plaintiff claims chipped teeth and mental health issues from the 25 alleged assault. See id. Plaintiff is asking for $10,000 for pain and suffering, $75,000 for punitive 26 damages, $250,000 for mental anguish, and $250,000 for future medical bills. See id. In total, Plaintiff 27

28 1 Defendant DeSimone is sued as “Desimone.” 1 is requesting $585,000. See id. 2 B. Procedural History 3 On February 2, 2023, the Court determined that the complaint was appropriate for 4 service. See ECF No. 10. On February 9, 2023, the Court issued findings and recommendations 5 that the State of California be dismissed as immune under the Eleventh Amendment. See ECF 6 No. 13. No objections to the February 9, 2023, findings and recommendations were filed and, on 7 March 19, 2024, the District Judge adopted the findings and recommendations and dismissed the 8 State of California as a defendant to this action. See ECF No. 42. Defendants DeSimone, Neri, 9 and Overby filed their answer on May 8, 2023. See ECF No. 23. 10 On June 26, 2023, Defendants Desimone, Neri, and Overby filed a motion for 11 judgment on the pleadings requesting judicial notice of Sacramento County Superior Court 12 criminal case records from People v. Ismail Mora, Case No. 22FE015252, and an order 13 dismissing Defendant Overby under Federal Rule of Civil Procedure 12(c) because Plaintiff’s 14 claim is barred by the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 15 (1994). See ECF No. 30. Plaintiff filed a statement of non-opposition on July 10, 2023. See ECF 16 No. 31. On March 18, 2024, the District Judge issued an order granting Defendants' motion and 17 dismissing Overby as a defendant. See ECF No. 42. Remaining Defendants DeSimone and Neri 18 timely filed the currently pending motion for summary judgment on June 7, 2024. See ECF No. 19 43. Plaintiff has not filed an opposition. 20 21 II. THE PARTIES’ EVIDENCE 22 Defendant’s motion is supported by a Memorandum of Points and Authorities, 23 ECF No. 43-1, a Statement of Undisputed Facts (SUF), ECF No. 43-3, and the declarations of 24 Defendant DeSimone, ECF No. 43-4, Defendant Neri, ECF No. 43-5, and Deputy Attorney 25 General Sean Lodholz, ECF No. 43-6. Defendants also rely on the attached exhibits and transcript 26 of Plaintiff’s deposition, which has been lodged. 27 / / / 28 / / / 1 Defendants assert that the following facts related to Plaintiff’s excessive force 2 claims are undisputed:

3 1. During medication pass at California State Prison, Sacramento (SAC) on the morning of April 14, 2022, Defendant 4 Correctional Officers DeSimone and Neri witnessed Plaintiff wearing his shirt improperly around his face. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.) 5 2. Plaintiff failed to comply with orders to wear his shirt the 6 correct way. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.)

7 3. Plaintiff admits that he was wearing his shirt incorrectly but says that he was using it to cover his face because he had run out of 8 COVID masks. (Decl. Lodholz, Ex. A at 18:4-18.)

9 4. Plaintiff concedes he did not tell staff why he was wearing his shirt as a mask and that staff could have interpreted his response to 10 orders to wear it correctly as noncompliance. (Decl. Lodholz, Ex. A at 59:18-60:23.) 11 5. Defendant Correctional Officer DeSimone told Plaintiff 12 that his actions were disrespectful to female staff. (Decl. DeSimone ¶ 3; Decl. Lodholz, Ex. A at 19:2-7.) 13 6. According to Plaintiff, he turned away from Officer 14 DeSimone to apologize to a nearby female staff member and when he looked back, Officer DeSimone was in his face, raising his fist, and looked 15 “ready to sock” Plaintiff. (Decl. Lodholz, Ex. A at 19:2-25.)

16 7. Plaintiff alleges that he responded by swinging back at Officer DeSimone and the two started fighting. (Decl. Lodholz, Ex. A at 17 19:13-17.)

18 8. Plaintiff states that he was defending himself and, although he is not certain, acknowledges that he may have struck Officer DeSimone 19 first. (Decl. Lodholz, Ex. A at 20:1-18.)

20 9. Plaintiff was mistaken as to Officer DeSimone’s intention, because Officer DeSimone was not going to hit Plaintiff. (Decl. DeSimone 21 ¶ 3.)

22 10. Officer DeSimone approached Plaintiff to place him in restraints and was moving to retrieve handcuffs from a pouch on the 23 right side of his duty belt. (Decl. DeSimone ¶ 3.)

24 11. When Plaintiff struck Officer DeSimone, he responded by striking Plaintiff in the mouth to defend himself. (Decl. DeSimone ¶ 3.) 25 12. Officer Neri was standing behind Officer DeSimone as he 26 approached Plaintiff and witnessed Plaintiff punch Officer DeSimone in the face. (Decl. Neri ¶ 3.) 27 13. Officer Neri ordered Plaintiff to get down, but he did not 28 comply. (Decl. Neri ¶ 3.) 1 14. In order to gain compliance with his order and subdue Plaintiff, Officer Neri wrapped his arms around Plaintiff’s lower body and 2 assisted Officer DeSimone in forcing Plaintiff to the ground. (Decl. Neri ¶ 3; Decl. DeSimone ¶ 3.) 3 15. Plaintiff concedes that Officer Neri’s initial intervention 4 and use of force to take Plaintiff to the ground in response to his altercation with Officer DeSimone was reasonable. (Decl. Lodholz, Ex. A 5 at 61:7-15, 62:19-64:4.)

6 16. Plaintiff alleges that the force used after he was on the ground was excessive because he stopped resisting once he was on the 7 ground, but Defendants (including dismissed-Defendant Overby) continued to hit him. (ECF No. 1 at 3; Decl. Lodholz, Ex. A at 23:22- 8 27:22, 61:7-15, 62:19-64:4.)

9 17. Defendants dispute the claim that Plaintiff stopped resisting once he was on the ground. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.) 10 18. According to Defendants, once Plaintiff was on the ground 11 he continued to resist by thrashing his body, kicking, and ignoring orders to stop. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.) 12 19. Officer Overby responded by assisting Officers DeSimone 13 and Neri to overcome Plaintiff’s active resistance. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.) 14 20. During their struggle with Plaintiff on the ground, 15 DeSimone punched Plaintiff in the nose and Officer Neri punched Plaintiff twice in the abdomen in an effort to gain compliance with orders, 16 overcome Plaintiff’s continued resistance, and subdue him. (Decl. DeSimone ¶ 3; Decl. Neri ¶ 3.) 17 21. Because of their focus on Plaintiff, Officers DeSimone and 18 Neri did not observe the force used by each other or Office Overby, but Officer Overby’s report states that he struck Plaintiff three times with his 19 baton. (Decl. Neri ¶ 3; Decl. DeSimone ¶ 3, Ex. A at Bates No. 24-25 (Overby Report).) 20 22. Additional staff arrived, secured Plaintiff in restraints, and 21 took him for a medical evaluation. (Decl. Neri ¶ 4.)

22 23. The medical report of injury documented bleeding, cuts, and swelling to Plaintiff’s face. (Decl. DeSimone, Ex. A at Bates Nos. 37, 23 57-58 (Pl.’s Form 7219 & injury photos).)

24 24. Plaintiff alleges that he re-chipped a previously damaged tooth during the incident but suffered no other permanent physical injury. 25 (Decl. Lodholz, Ex. A at 31:18-33:21, 35:7-11.)

26 25. DeSimone was bleeding from a significant laceration to his right eyebrow and went to an outside hospital for treatment. (Decl. 27 DeSimone ¶ 4, Ex. A at Bates Nos. 39, 47-49 (DeSimone’s Form 7219 & Injury Photos).) 28 1 26. During the incident, Officer DeSimone used the force he believed was necessary to defend himself; and Officers DeSimone and 2 Neri used force they believed was necessary to stop Plaintiff’s attack, overcome Plaintiff’s active resistance, gain compliance with lawful orders, 3 and effect custody. (Decl. DeSimone ¶ 5; Decl. Neri ¶ 5.)

4 27. Plaintiff was criminally charged for battering Defendant DeSimone, Neri, and Overby during the incident. (ECF No. 30-1, Ex. A.) 5 28. Plaintiff subsequently pled no contest to violating 6 California Penal Code section 69 with respect to Officer Overby during the incident and was sentenced to one-year and-four-months in prison. 7 (ECF No. 30-1, Exs. B, C.)

8 29. Penal Code Section 69 states, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer 9 from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the 10 performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision 11 (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.” (Cal. Pen. Code § 69(a).) 12 30. The criminal court found a factual basis for the plea based 13 on Plaintiff’s obstruction and resistance of Defendant Overby in the performance of his lawful duties during the incident. (ECF No. 30-1, Ex. 14 D at 4:16-26, 7:17.)

15 ECF No. 43-3. 16 While Plaintiff has not filed any opposition to Defendants' motion for summary 17 judgment, the Court will nonetheless consider Plaintiff's verified complaint as his declaration 18 where appropriate. 19 20 III. DISUCSSION 21 In their unopposed motion, Defendants argue that summary judgment is 22 appropriate because: (1) the undisputed evidence shows that Defendants did not violate the Eighth 23 Amendment; (2) Plaintiff’s claim that he stopped resisting once on the ground and Defendants 24 continued to use unnecessary force is barred under Heck v. Humphrey; and (3) Defendants are 25 entitled to qualified immunity. See ECF No. 43-1. For the reasons discussed below, the Court 26 agrees that summary judgment in Defendants' favor is appropriate. 27 / / / 28 / / / 1 The treatment a prisoner receives in prison and the conditions under which the 2 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 3 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 4 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 5 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 6 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 7 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 8 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 9 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 10 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 11 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 12 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 13 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 14 official must have a “sufficiently culpable mind.” See id. 15 When prison officials stand accused of using excessive force, the core judicial 16 inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline, 17 or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 18 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as 19 opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, 20 is applied to excessive force claims because prison officials generally do not have time to reflect 21 on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 22 U.S. at 320-21. In determining whether force was excessive, the court considers the following 23 factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship 24 between the need for force and the amount of force used; (4) the nature of the threat reasonably 25 perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. 26 See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force 27 was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 28 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, 1 because the use of force relates to the prison’s legitimate penological interest in maintaining 2 security and order, the court must be deferential to the conduct of prison officials. See Whitley, 3 475 U.S. at 321-22. 4 Defendants contend the force used did not violate the Eighth Amendment because 5 the undisputed evidence shows that force was reasonably applied in a good-faith effort to subdue 6 Plaintiff, not maliciously or sadistically to cause Plaintiff harm. See ECF 43-1 at 8-9. According 7 to Defendants:

8 During the incident, Officer DeSimone used the force he believed was necessary to defend himself; Officers DeSimone and Neri used force 9 they believed was necessary to stop Plaintiff’s attack, overcome Plaintiff’s active resistance, gain compliance with lawful orders, and effect custody. 10 (SUF No. 26.)

11 ECF No. 43-1, pg. 4. 12 Defendants further contend that Plaintiff’s claim that Defendants used unnecessary force 13 after he stopped resisting once on the ground is barred under Heck v. Humphrey, 512 14 U.S. 477 (1994). 15 Defendants’ argument is persuasive. The evidence establishes two distinct uses of 16 force at issue – Defendants’ initial force used while Plaintiff was standing and Defendants’ use of 17 force once Plaintiff was on the ground. It is undisputed that the incident ensued after Defendant 18 DeSimone issued a verbal warning to Plaintiff to properly wear his shirt. See ECF No. 43-1, pg. 19 2. Considering Plaintiff conceded that his non-response to orders to wear his shirt correctly could 20 have been interpreted as noncompliance, the Court finds that Defendant DeSimone reasonably 21 raised his response level by approaching Plaintiff with the intention to place him in restraints. 22 Additionally, given deference to the need to maintain security and order, the Court also finds the 23 incident at issue was undisputedly dangerous once punches were exchanged by Plaintiff and 24 Defendant DeSimone. As such, Defendant Neri reasonably stepped in to assist Defendant 25 DeSimone’s efforts to subdue Plaintiff. Furthermore, Plaintiff concedes, that Defendants Neri’s 26 initial force was in good-faith and reasonable. Thus, Defendants’ initial force used while Plaintiff 27 was standing was an appropriate application of force under the circumstances. 28 / / / 1 Defendants also argue that Plaintiff’s claim that he stopped resisting once on the 2 ground and that Defendants' continued use of force was excessive is barred by Heck. The Court 3 agrees. 4 When a state prisoner challenges the legality of his custody and the relief he seeks 5 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 6 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 7 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 8 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 9 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 10 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 11 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 12 imposition of a sanction affecting the overall length of confinement, such a claim is not 13 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 14 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 15 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 16 malicious prosecution action which includes as an element a finding that the criminal proceeding 17 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 18 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 19 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 20 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 21 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 22 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 23 eligible for parole consideration not barred because changed procedures would hasten future 24 parole consideration and not affect any earlier parole determination under the prior procedures). 25 Defendants argue:

26 Plaintiff was criminally charged for battering Defendants DeSimone, Neri, and Overby during the incident. (UF No. 27.) Plaintiff 27 subsequently pled no contest to violating California Penal Code section 69 with respect to Officer Overby during the incident and was sentenced to 28 one-year-and-four-months in prison. (UF No. 28.) Penal Code section 69 1 states, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed 2 upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable 3 by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county 4 jail not exceeding one year, or by both such fine and imprisonment.” (UF No. 29.) The criminal court found a factual basis for the plea based on 5 Plaintiff’s obstruction and resistance of Defendant Overby in the performance of his lawful duties during the incident. (UF No. 30.) 6 ECF No. 43-1, pg. 4. 7 8 The evidence, which is not in dispute, shows that Plaintiff continued to resist once 9 on the ground because dismissed Defendant Overby only responded once Plaintiff was already on 10 the ground and the lawfulness of dismissed Defendant Overby’s actions was necessarily an 11 element of Plaintiff’s conviction in state court for batter on a peace officer. That is, it would have 12 been unlawful for dismissed Defendant Overby to use force against a prisoner who was not 13 obstructing or resisting, and thus Plaintiff’s conviction shows he continued to resist once on the 14 ground during performance of dismissed Defendant Overby’s lawful duties. This conviction has 15 not been overturned on appeal or otherwise set aside. Given these facts, success on the merits of 16 Plaintiff’s excessive force claim would necessarily imply the invalidity of the state court 17 conviction and, as such, the claim is barred. See Heck, 512 U.S. at 483. 18 The Court finds that Defendants have met their burden on summary judgment of 19 demonstrating the absence of a genuine dispute of material fact. Defendants’ undisputed evidence 20 shows the force used by Defendant DeSimone and Defendant Neri was applied in good faith 21 because Defendants’ actions reflected their assessment of the reasonable level of force necessary 22 to restore order at that time under the circumstances presented to them. The undisputed evidence 23 also shows that, as to Plaintiff's claims relating to the continued use of force once Plaintiff was on 24 the ground, the claims are barred due to Plaintiff's state court conviction. 25 The burden therefore shifts to Plaintiff to provide sufficient evidence to create a 26 genuine dispute of material fact. As stated above, Plaintiff has not filed an opposition to 27 Defendants’ motion for summary judgment. Considering Plaintiff’s complaint as his declaration, 28 the Court finds nothing in Plaintiff’s allegations which would create a genuine dispute as to the 1 | issues of the reasonableness of the force used or application of the Heck bar. Therefore, Plaintiff 2 || cannot prevail on his Eighth Amendment excessive force claims and Defendant DeSimone and 3 | Neri are entitled to judgment in their favor as a matter of law.” 4 5 IV. CONCLUSION 6 Based on the foregoing, the undersigned recommends that Defendants’ unopposed 7 || motion for summary judgment, ECF No. 43, be GRANTED. 8 These findings and recommendations are submitted to the United States District 9 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 || after being served with these findings and recommendations, any party may file written objections 11 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: January 29, 2025 SS GC 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 ———— 2 Given these findings, it is not necessary to address whether Defendants are also 28 | entitled to qualified immunity. 12