1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 PATRICK M. McMILLAN, ) Case No.: 1:19-cv-00444-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) REGARDING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMNET

14 O. DELGADO, et.al., ) ) (ECF No. 41) 15 Defendants. ) ) 16 ) ) 17 )

18 Plaintiff Patrick M. McMillan is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 Currently before the Court is Defendants’ motion for summary judgment, filed on March 8, 22 2021. 23 I. 24 RELEVANT BACKGROUND 25 This action is proceeding is proceeding against Defendants O. Delgado, N. Romero, D. Brown, 26 C. Riley, B. Jones, M. Negrete, and J. Dunnahoe, for excessive force in violation of the Eighth 27 Amendment and negligence under California law. 28 On July 1, 2019, Defendants filed an answer to the complaint. 1 After an unsuccessful settlement conference, the Court issued the discovery and scheduling 2 order on September 11, 2019. 3 On February 12, 2020, the Court granted Plaintiff’s motion to amend the complaint to add a 4 negligence claim, and Plaintiff’s first amended complaint was filed this same day. 5 On March 2, 2020, Defendants filed an amended answer to Plaintiff’s first amended complaint. 6 After extending the discovery and dispositive motions deadlines three times, Defendants filed 7 the instant motion for summary judgment, on March 8, 2021. Plaintiff has not filed an opposition and 8 the time to do so has now passed.1 Local Rule 230(l). 9 II. 10 LEGAL STANDARD 11 A. Summary Judgment Standard 12 Any party may move for summary judgment, and the Court shall grant summary judgment if 13 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 14 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. 15 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed 16 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including 17 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials 18 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot 19 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 20 The Court may consider other materials in the record not cited to by the parties, but it is not required 21 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 22 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 23 In judging the evidence at the summary judgment stage, the Court does not make credibility 24 determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 25 26 1 Concurrently with their motion for summary judgment, Defendants served Plaintiff with the requisite notice of the 27 requirements for opposing the motion pursuant to Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 41-1.) 28 1 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most 2 favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry 3 of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 4 (quotation marks and citation omitted). 5 In arriving at these Findings and Recommendations, the Court carefully reviewed and considered 6 all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses 7 thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, 8 document, paper, or objection is not to be construed to the effect that this Court did not consider the 9 argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence 10 it deemed admissible, material, and appropriate. 11 III. 12 DISCUSSION 13 A. Summary of Plaintiff’s Allegations in First Amended Complaint 14 On March 25, 2018, Plaintiff was housed at California Correctional Institution (CCI), Facility 15 A. On this date, all Defendants were posted at CCI and responded to a Code-3 on Facility A, due to a 16 riot involving “Two-Five” gang members. All Defendants responded to the Code-3 alarm. Plaintiff 17 was on the yard as a bystander when the riot erupted on Facility A. 18 Defendants discharged dozens of rounds, cumulatively from their 40mm less than lethal riot 19 control weapons. Plaintiff was struck twice by 40mm projectiles, once in the face and once in the 20 bicep. Plaintiff was transported to a local area hospital for injuries resulting from being struck and 21 severely injured by the 40mm projective fired from the weapons only Defendants possessed. Plaintiff 22 suffered fractured facial bones and lacerations caused by being shot in the face. 23 Plaintiff was found not guilty of a Rules Violent Report based upon the preponderance of the 24 evidence. 25 On October 13, 2018, Plaintiff submitted his complaint to the California Superior Court of 26 Kern County, where CCI is located. Plaintiff exhausted his administrative remedies. 27 /// 28 /// 1 B. Statement of Undisputed Facts2,3 2 1. Plaintiff is a state prisoner in the custody of the California Department of Corrections 3 and Rehabilitation (CDCR) and was housed at CCI. (First Am. Compl. (FAC) 2, ECF No. 32.) 4 2. Defendants Delgado, Romero, Brown, Riley, Jones, Negrete, and Dunnahoe worked as 5 correctional officers at CCI. (FAC 2.) 6 Prison Riot on March 25, 2018 7 3. On March 25, 2018, a prison riot erupted on Facility A yard at CCI, during which many 8 “Two-Five” gang members attacked other inmates with weapons and violence. (FAC 3, Barthelmes 9 Decl. ¶ 4, ECF No. 44.) 10 4. A “Code 3” was announced via institutional radio, which is announced when an event 11 occurs of such magnitude that it requires all available custody staff throughout the institution to 12 respond. (Barthelmes Decl. ¶¶ 5-6; Dunnahoe Decl. ¶ 3; Brown Decl. ¶ 3; Delgado Decl. ¶ 3; Jones 13 Decl. ¶ 3; Romero Decl. ¶ 3; Riley Decl. ¶ 3, ECF Nos. 41-5 to 41:10, ECF No. 44.) 14 5. During the riot, Defendants yelled multiple orders for inmates to “Get down!” on the 15 ground and to assume a prone position. (Barthelmes Decl. ¶ 8; Negrete ¶ 5, Dunnahoe Decl. ¶ 5; 16 Brown Decl. ¶¶ 5, 11; Delgado Decl. ¶¶ 5, 12, 15, 24; Jones Decl. ¶¶ 4-5, 7, 9-10; Romero Decl. ¶¶ 4- 17 5, 7-9, 11; Riley Decl. ¶¶ 4, 11; Pl. Dep. 20:25-21:10, 21:20-22:3, ECF Nos. 41-4 to 41:10, ECF No. 18 44.) 19 6. All inmates and staff members are trained to know and understand what these orders 20 mean. (Barthelmes Decl. ¶ 8.) 21 7. Non-involved inmates moved away from the rioting inmates and assumed prone 22

23 2 Plaintiff neither admitted or denied the facts set forth by Defendants as undisputed nor filed a separate statement of disputed facts. Local Rule 56-260(b). Therefore, the Court was left to compile the summary of undisputed facts from 24 Defendants’ statement of undisputed facts and Plaintiff’s verified complaint. A verified complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is based on an 25 inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985); F.R.C.P. 56(e). 26 Because Plaintiff neither submitted his own statement of disputed facts nor addressed Defendants’ statement of undisputed facts, the Court accepts Defendants’ version of the undisputed facts where Plaintiff’s verified complaint is not 27 contradictory.

28 3 1 positions. (Barthelmes Decl. ¶ 9.) 2 8. However, many inmates ignored the orders and continued fighting. (Barthelmes Decl. 3 ¶ 9; Negrete Decl. ¶¶ 5-7, 9, 14-22; Dunnahoe Decl. ¶¶ 6-12; Brown Decl. ¶¶ 6-12; Delgado Decl. ¶¶ 4 5-8, 10-12, 15, 17-24; Jones Decl. ¶¶ 5, 7, 9-10; Romero Decl. ¶¶ 4-12; Riley Decl. ¶¶ 4-10, ECF Nos. 5 41-4 to 41:10, ECF No. 44.) 6 9. Responding staff used multiple force options to separate the inmates, subdue the rioting 7 inmates, prevent further injury, and regain control over the yard. (Barthelmes Decl. ¶ 10.) 8 10. The force options used included CN pocket grenades (which produce smoke); OC blast 9 grenades (that produce pepper spray smoke); MK9 OC pepper spray foggers (which spray pepper 10 spray); “6325 exact impact” sponge rounds (foam-tipped projectiles) fired from 40 mm launchers; and 11 eventually .223 caliber rounds fired from a Ruger Mini 14 rifle. (Barthelmes Decl. ¶ 10; Negrete 12 Decl. ¶¶ 6, 9, 11, 13, 15, 17-21, 23; Dunnahoe Decl. ¶¶ 6, 8-12; Brown Decl. ¶¶ 6-10, 12, 14; Delgado 13 Decl. ¶¶ 5-8, 10-13, 15-16, 18-20, 24; Jones Decl. ¶¶ 5, 7, 9, 10; Romero Decl. ¶¶ 5-8, 10-12; Riley 14 Decl. ¶¶ 5-10, 12, ECF Nos. 41-4 to 41:10, ECF No. 44.) 15 11. The launchers fire a high-speed projectile with a 40 mm diameter sponge (foam) tip. 16 (Barthelmes Decl. ¶ 12.) The round is a “point-of-aim, point-of-impact” direct fire round that is 17 commonly used by tactical teams and for riot control. (Id.) Officers are trained to target the large 18 muscle groups of the buttocks, thigh, and legs, known as “green zone” or “zone 1,” to cause sufficient 19 pain stimulus, while greatly reducing serious or life-threatening injuries. (Id.) The launchers used by 20 correctional officers are most commonly the single shot variant, which requires reloading after each 21 round is fired, and the multi-launcher, which uses a cylinder that holds six rounds, but still needs to be 22 cycled and chambered after each round is fired. (Id.) 23 12. Plaintiff responded to the orders to assume a prone position by running toward a stair 24 area. (Pl. Dep. 22:2-23:9.) 25 13. The riot was chaotic and dangerous. (Pl. Dep. 29:23-30:9.) 26 14. It was appropriate for the custody staff to use force and quell the riot, and specifically, 27 to use the 40 mm launchers. (Pl. Dep. 31:18-20, 32:23-33:1.) 28 15. Plaintiff was not watching the Defendants fire their 40 mm launchers during the riot, 1 could not have seen them due to the smoke, and cannot identify who fired the launchers, other than 2 from the written reports. (Pl. Dep. 37:4-38:5.) 3 16. Plaintiff does not contend and does not know if the Defendants acted maliciously. (Pl. 4 Dep. 37:25-38:10.) 5 17. Plaintiff contends that he was struck by two 40 mm rounds, first to his upper right arm, 6 and second to his zygomatic bone on the right side of his face. (Pl. Dep. 45:10-13, 49:15-50:2; FAC 7 3.) 8 18. Plaintiff does not know who fired the two 40 mm rounds that struck him. (Pl. Dep. 9 48:22-49:7, 50:24-51:1.) 10 19. After Plaintiff was struck the second time, he complied with the orders to assume a 11 prone position to the ground. (Pl. Dep. 51:2-5.) 12 20. Nonetheless, the riot continued to go on around Plaintiff. (Pl. Dep. 53:19-25.) 13 21. It was not until lethal force was later used on another inmate that all of the rioting 14 inmates complied with the orders to assume a prone position. (Barthelemes ¶¶ 17-18; Pl. Dep. 54:1- 15 55:3.) 16 22. A restraint sweep was then initiated on the yard. (Barthelmes ¶¶ 20-21; Dunnahoe 17 Decl. ¶ 14; Brown Decl. ¶ 15; Delgado Decl. ¶ 25; Riley Decl. ¶ 15.) 18 23. The inmates were then escorted off the yard. (Barthelmes ¶ 21; Negrete Decl. ¶ 25; 19 Dunnahoe Decl. ¶ 14; Delgado Decl. ¶ 25; Riley Decl. ¶ 15.) 20 24. After the yard was cleared, investigating officers discovered multiple items used by the 21 rioting inmates as weapons. (Barthelmes ¶ 22.) This included a white sock containing two bars of 22 soap; a brown wooden cane; and three inmate-manufactured slicing/stabbing weapons. (Id.) 23 Numerous pieces of bloody clothing were also located, including gloves, beanies, and a white towel. 24 (Id.) 25 Defendant Negrete’s Involvement 26 25. Negrete was positioned in the observation tower overlooking the yard. (Negrete Decl. 27 ¶ 2.) 28 26. Negrete aimed and fired his first four 40 mm rounds at inmates who were non- 1 compliant with the orders to assume a prone position, were actively fighting other inmates, and whom 2 he believed posed an immediate threat. (Negrete Decl. ¶¶ 9, 11, 13, 15.) 3 27. Negrete observed a Hispanic inmate making a slashing motion toward a Black inmate. 4 (Negrete Decl. ¶¶ 16-18.) 5 28. Negrete transitioned from his 40 mm launcher to his Ruger Mini 14 rifle and fired two 6 warning shots near the two fighting inmates. (Negrete Decl. ¶¶ 17-18.) 7 29. After the warning shots, Negrete transitioned back to his 40 mm launcher, and then 8 aimed and fired his sixth round at a Hispanic inmate who was fighting a Black inmate. (Negrete Decl. 9 ¶¶ 19-20.) 10 30. Negrete observed a Black inmate swinging a cane at a Hispanic inmate’s head, 11 transitioned back to his Ruger Mini 14, and fired a lethal shot at the Black inmate’s leg, striking him. 12 (Negrete Decl. ¶¶ 22-23.) 13 31. At no time was Negrete’s view of the riot obstructed. (Negrete Decl. ¶ 28.) 14 32. Although Negrete could not identify the inmates during the incident, he was able to 15 observe the fight, orient his attention to the fighting inmates and those presenting an immediate threat, 16 assess whether use of force and what level of force was necessary in the moment, and then act on that 17 assessment. (Negrete Decl. ¶ 29.) 18 Defendant Dunnahoe’s Involvement 19 33. Dunnahoe was positioned in the skirmish line overlooking the yard. (Dunnahoe Decl. ¶ 20 3.) 21 34. Dunnahoe aimed and fired his 40 mm launcher at inmates who were non-compliant 22 with the orders to assume a prone position, were actively fighting other inmates, and whom he 23 believed posed an immediate threat. (Dunnahoe Decl. ¶¶ 6-12.) 24 35. Although Dunnahoe could not identify the inmates during the incident, or see where 25 some of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his 26 shots. (Dunnahoe Decl. ¶ 16.) 27 36. Dunnahoe was able to observe the fights, orient his attention to the fighting inmates and 28 1 those presenting an immediate threat, assess whether use of force and what level of force was 2 necessary in the moment, and then act on that assessment. (Dunnahoe Decl. ¶ 17.) 3 Defendant Brown’s Involvement 4 37. Brown was positioned in the skirmish line. (Brown Decl. ¶ 3.) 5 38. Brown aimed and fired his 40 mm launcher at inmates who were non-compliant with 6 the orders to assume a prone position, were actively fighting other inmates, and whom he believed 7 posed an immediate threat. (Brown Decl. ¶¶ 5-14.) 8 39. Although Brown could not identify the inmates during the incident, or see where some 9 of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his shots. 10 (Brown Decl. ¶ 17.) 11 40. Brown was able to observe the fights, orient his attention to the fighting inmates and 12 those presenting an immediate threat, assess whether use of force and what level of force was 13 necessary in the moment, and then act on that assessment. (Brown Decl. ¶ 18.) 14 Defendant Delgado’s Involvement 15 41. Delgado was positioned in the skirmish line. (Delgado Decl. ¶ 3.) 16 42. Throughout the riot, Delgado yelled multiple orders for inmates to “Get down!” in a 17 prone position. (Delgado Decl. ¶¶ 5, 13, 15, 24.) 18 43. Delgado aimed and fired his 40 mm launcher at inmates who were non-compliant with 19 the orders to assume a prone position, were actively fighting other inmates, and whom he believed 20 posed an immediate threat. (Delgado Decl. ¶¶ 5-8, 10-13, 15-20, 23-24.) 21 44. Although Delgado could not identify the inmates during the incident, or see where 22 some of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his 23 shots. (Delgado Decl. ¶ 27.) 24 45. Delgado was able to observe the fights, orient his attention to the fighting inmates and 25 those presenting an immediate threat, assess whether use of force and what level of force was 26 necessary in the moment, and then act on that assessment. (Delgado Decl. ¶ 28.) 27 Defendant Jones’s Involvement 28 46. Jones was positioned in the skirmish line. (Jones Decl. ¶ 3.) 1 47. Jones aimed and fired his 40 mm launcher at inmates who were non-compliant with 2 the orders to assume a prone position, were actively fighting other inmates, and whom he believed 3 posed an immediate threat. (Jones Decl. ¶¶ 5, 7, 9, 10.) 4 48. Although Jones could not identify the inmates during the incident, or see where 5 some of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his 6 shots. (Jones Decl. ¶ 14.) 7 49. Jones was able to observe the fights, orient his attention to the fighting inmates and 8 those presenting an immediate threat, assess whether use of force and what level of force was 9 necessary in the moment, and then act on that assessment. (Jones Decl. ¶ 15.) 10 Defendant Romero’s Involvement 11 50. Romero was positioned in the skirmish line. (Romero Decl. ¶ 4.) 12 51. Throughout the riot, Romero yelled multiple orders for inmates to “Get down!” in a 13 prone position. (Romero Decl. ¶¶ 4-5, 7-9, 11.) 14 52. Romero aimed and fired his 40 mm launcher at inmates who were non-compliant with 15 the orders to assume a prone position, were actively fighting other inmates, and whom he believed 16 posed an immediate threat. (Romero Decl. ¶¶ 5-12.) 17 53. Although Romero could not identify the inmates during the incident, or see where 18 some of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his 19 shots. (Romero Decl. ¶ 14.) 20 54. Romero was able to observe the fights, orient his attention to the fighting inmates and 21 those presenting an immediate threat, assess whether use of force and what level of force was 22 necessary in the moment, and then act on that assessment. (Romero Decl. ¶ 15.) 23 Defendant Riley’s Involvement 24 55. Riley was positioned in the skirmish line. (Riley Decl. ¶ 3.) 25 56. Riley aimed and fired his 40 mm launcher at inmates who were non-compliant with 26 the orders to assume a prone position, were actively fighting other inmates, and whom he believed 27 posed an immediate threat. (Riley Decl. ¶¶ 4-13.) 28 57. Although Riley could not identify the inmates during the incident, or see where 1 some of the rounds struck, his view of the fighting inmates was not obstructed at the time he fired his 2 shots. (Riley Decl. ¶ 16.) 3 58. Riley was able to observe the fights, orient his attention to the fighting inmates and 4 those presenting an immediate threat, assess whether use of force and what level of force was 5 necessary in the moment, and then act on that assessment. (Riley Decl. ¶ 16.) 6 C. Analysis of Defendants’ Motion 7 Defendants argue they are entitled to summary judgment because Plaintiff cannot prove that 8 any particular Defendant fired a 40 mm round that struck him and caused his injuries. In addition, the 9 undisputed facts demonstrate that Defendants did not use excessive force during the riot. In the 10 alternative, Defendants argue they are entitled to qualified immunity. Lastly, Defendants argue they 11 are entitled to summary judgment on Plaintiff’s negligence claim because the undisputed evidence 12 shows that they acted reasonably during the riot. 13 1. Video of Incident 14 Defendants lodged a DVD video recording which contains two recordings taken of the incident 15 on March 25, 2018. (ECF No. 43.) The existence of the video does not change the usual rules of 16 summary judgment: in general, the Court will draw all reasonable inferences from the video in 17 Plaintiff's favor. Blankenhorn v. City of Orange, 485 F.3d 463, 468 n. 1 (9th Cir. 2007). However, if 18 the video “blatantly contradict[s]” a party's account, “so that no reasonable jury could believe it,” the 19 court need not credit the contradicted version on summary judgment. Scott v. Harris, 550 U.S. 372, 20 380 (2007); Williams v. Las Vegas Metro. Police Dep't, No. 2:13-CV-1340-GMN-NJK, 2016 WL 21 1169447, at *4 (D. Nev. Mar. 22, 2016) (The existence of the video does not change the usual rules of 22 summary judgment: in general, the court will draw all reasonable inferences from the video in 23 plaintiff's favor.); Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (“The record is 24 viewed in the light most favorable to the nonmovants ... so long as their version of the facts is not 25 blatantly contradicted by the video evidence.”). The Court will consider the video, but will consider 26 the facts in the light most favorable to Plaintiff. 27 /// 28 /// 1 2. Excessive Force in Violation of the Eighth Amendment 2 “[W]henever prison officials stand accused of using excessive physical force in violation of the 3 Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in [Whitley v. Albers, 4 475 U.S. 312 (1986)]: whether force was applied in a good-faith effort to maintain or restore 5 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 6 (1992). To determine whether the force used was excessive, courts consider factors such as the need 7 for the application of force, the relationship between the need and amount of force that was used, and 8 the extent of injury inflicted. Whitley, 475 U.S. at 321. “Equally relevant are such factors as the extent 9 of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on 10 the basis of facts known to them, and any efforts made to temper the severity of a forceful response.” 11 Id. 12 “Prison administrators ... should be accorded wide-ranging deference in the adoption and 13 execution of policies and practices that in their judgment are needed to preserve internal order and 14 discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979); Whitley, 15 475 U.S. at 321-22. Courts must be hesitant “to critique in hindsight decisions necessarily made in 16 haste, under pressure, and frequently without the luxury of a second chance.” Whitley, 475 U.S. at 17 320. 18 Although the Ninth Circuit has “ ‘held on many occasions’ ” that “ ‘[b]ecause the excessive 19 force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw 20 inferences therefrom, ...summary judgment or judgment as a matter of law in excessive force cases 21 should be granted sparingly.” Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011) 22 (alterations omitted) (quoting Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc)); 23 see also C.V. by and through Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) 24 (“[S]ummary judgment should be granted sparingly in excessive force cases.”). 25 However, “[w]hen opposing parties tell different stores, one of which is blatantly contradicted 26 by [a video], so that no reasonable jury could believe it, a court should not adopt that version of the 27 facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 28 (2007). Here, Defendants have submitted two separate video recording of the incident at the CCI. See 1 Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (“The record is viewed in the light 2 most favorable to the nonmovants... so long as their version of the facts is not blatantly contradicted by 3 the video evidence.”). 4 It is undisputed that on March 25, 2018, a prison riot erupted on Facility A yard at CCI, during 5 which many “Two-Five” gang members attacked other inmates with weapons and violence. (UF 3. ) 6 A “Code 3” was announced via institutional radio, which is announced when an event occurs of such 7 magnitude that it requires all available custody staff throughout the institution to respond. (UF 4.) 8 During the riot, Defendants yelled multiple orders for inmates to “Get down!” on the ground and to 9 assume a prone position. (UF 5.) All inmates and staff members are trained to know and understand 10 what these orders mean. (UF 6.) Non-involved inmates moved away from the rioting inmates and 11 assumed prone positions. (UF 7) However, many inmates ignored the orders and continued fighting. 12 (UF 8.) Responding staff used multiple force options to separate the inmates, subdue the rioting 13 inmates, prevent further injury, and regain control over the yard. (UF 9.) The force options used 14 included CN pocket grenades (which produce smoke); OC blast grenades (that produce pepper spray 15 smoke); MK9 OC pepper spray foggers (which spray pepper spray); “6325 exact impact” sponge 16 rounds (foam-tipped projectiles) fired from 40 mm launchers; and eventually .223 caliber rounds fired 17 from a Ruger Mini 14 rifle. (UF 10.) The launchers fire a high-speed projectile with a 40 mm 18 diameter sponge (foam) tip. (UF 11.) Plaintiff responded to the orders to assume a prone position by 19 running toward a stair area. (UF 12.) 20 Thus, the undisputed facts demonstrate that it was appropriate for Defendants to use force to 21 quell the riot, and specifically, to use 40 mm launchers. (UF 14.) Plaintiff was not watching as 22 Defendants fired their launchers, and he could not have seen them due to the grenade smoke on the 23 yard. (UF 15.) Indeed, it is undisputed that Plaintiff does not know who fired the two 40 mm rounds 24 that struck him, and he has presented no evidence to show that any particular Defendant caused his 25 injuries. (UF 18.) 26 Furthermore, the Hudson factors support the finding that summary judgment should be entered 27 in favor of Defendants. 28 /// 1 a. The need for the application of force 2 Here, because a riot erupted at CCI’s Facility A yard on March 25, 2018, there was an 3 emergency situation necessitating the use of force to restore discipline and prevent injury to inmates. 4 (UF 3.) During the riot, Defendants yelled multiple orders for inmates to “Get down!” on the ground 5 and to assume a prone position. (UF 5.) However, many inmates ignored the orders and continued 6 fighting. (UF 8.) In addition, the riot was chaotic and dangerous. (UF 13.) Thus, the need for the use 7 of force was obvious. See LeMaire v. Maas, 12 F.3d 1444, 1458 (9th Cir. 1993) (“[P]rison officials 8 are authorized and indeed required to take appropriate measures to maintain prison order and 9 discipline and protect staff and other prisoners from such violent behavior” when inmates become 10 disruptive.”); see also Glass v. Scribner, No. 1:04-cv-05953-AWI-DLB, 2009 WL 2579657, at *5 11 (E.D. Cal. Aug. 19, 2009) (“Insubordination is a matter taken very seriously within the confines of an 12 institutional setting.”) Indeed, Plaintiff admits that the use of force was appropriate to quell the riot. 13 (UF 14.) 14 b. The relationship between the need for a forceful response and the amount of force 15 used 16 Here, there was a direct relationship between the escalating need for the use of force and the 17 amount of force used. After the riot erupted, many inmates ignored orders to “Get down!” and 18 continued to fight. (UF 8.) Responding staff used multiple force options to separate the inmates, 19 subdue the rioting inmates, prevent further injury, and regain control over the yard, including CN 20 pocket grenades (which produce smoke); OC blast grenades (that produce pepper spray smoke); MK9 21 OC pepper spray foggers (which spray pepper spray); “6325 exact impact” sponge rounds (foam- 22 tipped projectiles) fired from 40 mm launchers; and eventually .223 caliber rounds fired from a Ruger 23 Mini 14 rifle. (UF 9, 10.) It is undisputed that it was appropriate for Defendants to use force to quell 24 the riot, and specifically, to use 40 mm launchers. (UF 14.) Indeed, even after Defendants’ utilized 25 their 40 mm launchers the fighting did not stop until potentially legal force was directed against 26 another inmate. (UF 21.) Thus, this factor weighs in favor of Defendants. 27 /// 28 /// 1 c. Extent of the injury 2 “Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately 3 counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). Plaintiff's first amended complaint, made under 4 the penalty of perjury, establishes that he was struck once in the face and once in the bicep by a 40 mm 5 launcher, and suffered fractured facial bones and lacerations on his face. In Whitley, the Court found 6 that the extent of physical injury is not the controlling factor in determining whether an Eighth 7 Amendment violation occurred. Whitley, 475 U.S. at 321; see also Wilkins v. Gaddy, 559 U.S. 34, 38 8 (2010) (while the extent of an inmate's injury is relevant to the Eighth Amendment inquiry, “[i]njury 9 and force ... are only imperfectly correlated, and it is the latter that ultimately counts.”). In Hudson, 10 the Court held that “[i]n determining whether the use of force was wanton and unnecessary it may also 11 be proper to evaluate the need for application of force, the relationship between that need and the 12 amount of force used, the threat “reasonably perceived by responsible officials,” and “any efforts 13 made to temper the severity of a forceful response.” Hudson, 503 U.S. at 7. It is undisputed that 14 Plaintiff was shot once in the face and once in the bicep with a 40 mm launcher and suffered injury. 15 The law is clear, however, that injury is but one factor to consider. 16 d. The threat reasonably perceived by Defendants 17 Defendants responded to a “Code 3” alarm announced on the institutional radio, which is done 18 when an event occurs that requires all available custody staff throughout the institution to respond. 19 (UF 4.) Defendants responded and yelled multiple orders for inmates to “Get down!” on the ground 20 and to assume a prone position. (UF 5.) However, many inmates ignored the orders and continued 21 fighting. (UF 8.) Responding staff used multiple force options to separate the inmates, subdue the 22 rioting inmates, prevent further injury, and regain control over the yard. (UF 9.) The force options 23 used included CN pocket grenades (which produce smoke); OC blast grenades (that produce pepper 24 spray smoke); MK9 OC pepper spray foggers (which spray pepper spray); “6325 exact impact” 25 sponge rounds (foam-tipped projectiles) fired from 40 mm launchers; and eventually .223 caliber 26 rounds fired from a Ruger Mini 14 rifle. (UF 10.) The launchers fire a high-speed projectile with a 40 27 mm diameter sponge (foam) tip. (UF 11.) 28 1 A review of the video recording of the riot on March 25, 2018 further demonstrates that the 2 threats to institutional safety and security were immediate and serious. Each Defendant observed 3 several inmates engaged in the active riot and were not complying with orders to assume a prone 4 position. (UF 26, 34, 43, 47, 52, 56.) Defendant Negrete also observed an inmate making a slashing 5 motion toward another inmate. (UF 27.) Negrete also observed an inmate swinging a cane at another 6 inmate’s head. (UF 30.) In the first video, several inmates can be seen fighting on a basketball court 7 in the midst waves of grenade smoke and pepper spray. (Stanley Decl. DVD beginning at timestamp 8 13:34:16.) Multiple groups of inmates are attacking one another, and two different inmates can be 9 seen swinging canes. (Id. at 13:34:32-50.) There is also a four-on-one fight and another inmates 10 swinging a cane. (Id. at 13:35:20, 13:35:33.) In the second video, several inmates can be observed 11 continuing to fight the basketball court amidst a wave of grenade smoke and pepper spray. (Id. 12 beginning at timestamp 13:33:00.) The second video further depicts large groups of inmates fighting 13 one another as officers fire their launchers in attempt to stop the riot. (Stanley Decl. DVD.); see 14 Hudson, 503 U.S. at 6; see also Silverman v. Mendiburu, No. 17-01146 BLF (PR), 2018 WL 2215844, 15 at *4 (N.D. Cal. May 10, 2018) (finding there exists no genuine dispute of material fact as to whether 16 any deputies applied excessive force after reviewing video footage of the hallway showing Plaintiff 17 being “firmly” escorted into his cell by deputies), aff'd and remanded, 785 F. App'x 460 (9th Cir. 18 2019); Gaddy v. Solis, No. C 11-5568 PJH (PR), 2013 WL 5202590, at *1, *4 (N.D. Cal. Sept. 16, 19 2013) (relying entirely on Defendants’ video evidence in a similar Section 1983 case brought by a 20 state prisoner when granting summary judgment because the “videos entirely support[ed] defendants' 21 factual assertions and contradict[ed] plaintiff's complaint and opposition to summary judgment”), aff'd 22 588 F. App'x 564 (9th Cir. 2014). 23 Given the ongoing riot, any reasonable prison official would perceive that the incident posed a 24 danger to inmates and staff and force was necessary to stop it. 25 e. Efforts made to temper the severity of a forceful response 26 Defendants responded immediately to the riot and made several verbal orders for the rioting 27 inmates to “Get down!” to no avail. (UF 5, 8.) Multiple force options were utilized throughout the 28 riot, including smoke and pepper spray to no avail. (UF 9, 10, Stanley Decl. DVD.) The riot did not 1 stop until three .223 rounds (potentially lethal force) was fired and the inmates assumed prone 2 positions. (Id.) Thus, it is undisputed that Defendants used only the force that was necessary to stop 3 the riot. 4 In sum, the Hudson factors, on balance, weigh in favor of summary judgment for Defendants. 5 Although Plaintiff testified that there was no reason to shoot in the area where he retreated (Pl. Dep. at 6 31), there is no evidence to establish that any Defendant maliciously and sadistically fired the 40 mm 7 launcher for the very purpose of causing him harm. In order for an Eighth Amendment excessive 8 force case to survive summary judgment, the evidence must go “beyond a mere dispute over the 9 reasonableness of a particular use of force or the existence of arguably superior alternatives” to 10 support “a reliable inference of wantonness in the infliction of pain.” Whitley, 475 U.S. at 322. The 11 fact that Plaintiff was not involved the riot does not change the Court's analysis. Even accepting 12 Plaintiff's allegations—that he was not near or involved in the riot, and that he was shot twice and 13 sustained an injury as a result of shots-Plaintiff has still failed to establish that defendant fired any of 14 the 40mm launcher rounds at him maliciously and sadistically for the very purpose of causing harm. 15 See, e.g., Jeffers v. Gomez, 267 F.3d 895, 902-03 (9th Cir. 2001) (although the plaintiff was 16 mistakenly shot during a riot, the court concluded officers had taken the shots in a good faith effort to 17 restore order because it was undisputed that there was a disturbance in the prison, and there was no 18 evidence suggesting the officers had any evil motive.); Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 19 2002). It is undisputed that Defendants fired rounds from the 40mm launcher because the inmates 20 continued to fight, and it was not until potentially lethal force was used on another non-party inmate, 21 that all of the rioting inmates finally complied with the orders to assume and a prone position and the 22 riot stopped. (UF 21.) The Court finds that an inference can “be drawn as to whether the use of force 23 could plausibly have been thought necessary.” Whitley, 475 U.S. at 320–21, 324 (finding the 24 intentional shooting of an inmate was part of a good faith effort to restore prison security and did not 25 violate the inmate's Eighth Amendment rights). Thus, the Court finds that, given the circumstances, 26 Defendants’ use of force was a good faith attempt at restoring order. See, e.g., Hardge v. Alameida, 27 No. 1:05-cv-00718-LJO-DLB PC, 2010 WL 2555755, at *3–4 (E.D. Cal. June 21, 2010) (granting 28 summary judgment in favor of the defendant in an observation tower above fighting inmates who fired 1 a rubber bullet at the fighting inmates, but unintentionally hit a compliant non-fighting inmate); see 2 also Wallace v. Tull, No. CV 09-5075-VAP-AGR, 2011 WL 1832717, at *5 (C.D. Cal. Mar. 14, 2011) 3 (no genuine issue of material fact despite fact that inmate was struck in the head with 40 mm gun); 4 Forest v. Prine, 620 F.3d 739, 746 (7th Cir. 2010) (the mere fact that a taser hit the inmate’s face did 5 not create a genuine issue of material fact). Accordingly, based on the evidence presented does not 6 show a genuine dispute as to any material fact relating to Plaintiff’s claim of excessive force against 7 Defendants. 8 3. Negligence Claim 9 Under California law “[t]he elements of a negligence cause of action are: (1) a legal duty to use 10 due care; (2) a breach of that duty; (3) the breach was the proximate or legal cause of the resulting 11 injury; and (4) actual loss or damage resulting from the breach of the duty of care.” Brown v. 12 Ransweiler, 171 Cal.App.4th 516, 534 (2009); accord Mendoza v. City of Los Angeles, 66 13 Cal.App.4th 1333, 1339 (1998). California law establishes a special relationship exists between a 14 prisoner and a correctional officer giving rise to a duty of care to protect the prisoner from foreseeable 15 harm inflicted by another person. Giraldo v. Dep't of Corr. & Rehabilitation, 168 Cal. App. 4th 231, 16 246-53, 85 Cal. Rptr. 3d 371, 382 (2008). A correctional officer also may be held liable in negligence 17 for the excessive use of force on an inmate. See Hayes v. County of San Diego, 57 Cal. 4th 622, 628– 18 29, 160 Cal. Rptr. 3d 684, 305 P.3d 252 (2013) (citing California Government Code sections 815.2, 19 820). It is a “long-established principle of California negligence law that the reasonableness of a 20 peace officer's conduct must be determined in light of the totality of the circumstances.” Hayes v. 21 County of San Diego, 57 Cal.4th at 632 (citations omitted). “A police officer’s use of deadline force 22 is reasonable if the officer has probable cause to believe that the suspect poses a significant threat of 23 death or serious injury to the officer or others.” Brown v. Ransweiler, 171 Cal.App.4th 516, 528 24 (2009). 25 Here, the undisputed facts demonstrate that given the totality of the circumstances reflect that 26 Defendants acted reasonably in responding and using force during the riot. It is undisputed that on 27 March 25, 2018, a riot erupted in which multiple inmates were ignored orders to assume a prone 28 position and were violently fighting one another. It is also undisputed that officers responded by 1 initially using smoke grenades, pepper spray grenades, and pepper spray itself to no avail. It is further 2 undisputed that Defendants’ use of the 40 mm launcher proved ineffective in stopping the riot and 3 restoring order, and it was not until potential lethal force was used a non-party inmate that the riot 4 finally stopped. Therefore, based on the undisputed evidence, Defendants acted reasonably under 5 California law to restore order and to keep other staff and inmates safe. See, e.g., Brown v. 6 Ransweiler, 171 Cal.App.4th at 534 (finding officer’s use of deadly force reasonable and not negligent 7 when a bystander was struck by bullet); Lopez v. City of Los Angeles, 196 Cal.App.4th 675, 682 8 (2011) (court granted nonsuit where there was no substantial evidence of unreasonable use of deadly 9 force where officers shot and killed the infant daughter of an armed suspect who was firing at the 10 officers while holding the child); Arrendell v. Perez, No. D065719, 2015 WL 5461502, at *4-6 11 (finding correctional officer not negligent where she missed her target and shot an innocent bystander 12 inmate because she was reasonably trying to stop the other inmates from fighting).4 13 IV. 14 RECOMMENDATIONS 15 Based on the foregoing, it is HEREBY RECOMMENDED that: 16 1. Defendants’ motion for summary judgment be granted; and 17 2. Judgment be entered in favor of Defendants. 18 These Findings and Recommendations will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 20 days after being served with these Findings and Recommendations, the parties may file written 21 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 22 Findings and Recommendations.” The parties are advised that failure to file objections within the 23 /// 24 /// 25 /// 26 27 4 This Court “may consider unpublished state decisions.” Employers Ins. Of Wausau v. Granite State Ins. Co., 330 F.3d 28 1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 2 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. ot fe 5 ll Dated: _ September 29, 2021 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19