1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH ST. SAUVER, Case No.: 20cv0584-JAH-MDD

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION GRANTING

IN PART AND DENYING IN PART

14 BYRD-HUNT,

DEFENDANT’S MOTION FOR

15 Defendant. SUMMARY JUDGMENT

16 [ECF No. 19] 17 18 This Report and Recommendation is submitted to United States 19 District Judge John A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local 20 Civil Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 For the reasons set forth herein, the Court RECOMMENDS 23 Defendant’s Motion for Summary Judgment be GRANTED IN PART and 24 DENIED IN PART. 25 I. PROCEDURAL HISTORY 26 On March 26, 2020, Plaintiff Kenneth St. Sauver (“Plaintiff”), a state 1 and in forma pauperis, filed a civil complaint pursuant to 42 U.S.C. § 1983. 2 (ECF No. 1, hereinafter “Compl.”). Plaintiff’s claims against Defendant 3 Paramo did not survive the Court’s Initial Screening per 28 U.S.C. §§ 4 1915(e)(2)(B) and 1915A(b). (See ECF No. 6 at 5). Plaintiff’s causes of action 5 against Defendant Byrd-Hunt (“Defendant”) for retaliation and use of 6 excessive force in violation of the First and Eighth Amendments remain. 7 (ECF No. 6 at 5-6; Compl.). 8 On April 12, 2021, Defendant filed the instant motion for summary 9 judgment. (ECF No. 19, hereinafter “MSJ”). Plaintiff filed a response in 10 opposition on June 10, 2021. (ECF No. 25, hereinafter “Oppo.”). Defendant 11 filed a reply on June 16, 2021. (ECF No. 27, hereinafter “Reply”). 12 II. STATEMENT OF FACTS 13 Plaintiff alleges Defendant ordered inmate Palmer to attack him in 14 retaliation for Plaintiff’s refusal to participate in officer-sanctioned fights and 15 for reporting staff misconduct. (Compl. at 15-16; Oppo. at 1).1 Additionally, 16 Plaintiff alleges Defendant retaliated against him by searching his cell and 17 destroying his property, by striking Plaintiff on the head with her baton, and 18 by issuing false and contradictory statements in Rules Violation Reports to 19 cover up the attack. (Oppo. at 1). Defendant denies ordering Plaintiff to 20 attack or fight any inmate at any time and denies ordering inmate Palmer or 21 any inmate to attack Plaintiff. (ECF No. 19-3, hereinafter “Def. Decl.” ¶ 3, 7). 22 It is undisputed that a fight between Plaintiff and inmate Palmer 23 occurred in the day room in front of the pill line windows at R.J. Donovan 24 25

26 1 All pincite page references refer to the automatically generated ECF page number, not 1 Correctional Facility around 7:25 a.m. on June 28, 2018.2 (Def. Decl. ¶ 2; 2 ECF No. 19-5, hereinafter “Le Decl.” ¶ 2; ECF No. 19-4, hereinafter “Jiminez 3 Decl.” ¶ 2; ECF No. 25, hereinafter “Biggs Decl.” ¶ 2; ECF No. 25, hereinafter 4 “Walker Decl.” ¶ 2). Defendant, Correctional Officer Byrd-Hunt, responded 5 to the fight when she saw the inmates punching each other with closed fists. 6 (Def. Decl. ¶¶ 2-3). On her way to the scene, Defendant yelled for both 7 inmates to “get down.” (Id. at ¶ 3). 8 When Defendant arrived, inmate Palmer was sitting on Plaintiff’s back 9 punching him in the back of the head. (Id.). Defendant ordered them to “get 10 down” again. (Id.). Plaintiff remained on his stomach. (Id.). Inmate Palmer 11 moved about six feet away and took a prone position. (Id.). Another staff 12 member arrived and immediately handcuffed inmate Palmer. (Id.). Plaintiff 13 began to move his arms and appeared to be trying to get back up. (Id. at 4). 14 Defendant ordered Plaintiff to “get down” and moved to handcuff him. (Id.). 15 What happened next is disputed. 16 According to Defendant and other prison staff witnesses, Plaintiff 17 suddenly jumped to his feet and reached out, grabbing Defendant’s waist 18 with both hands. (Def. Decl. ¶ 4; Jimenez Decl. ¶ 4; ECF No. 21, hereinafter 19 “Esquilin Decl.” ¶ 2). Defendant ordered Plaintiff to “get down,” but Plaintiff 20 did not obey. (Jimenez Decl. ¶ 4). Defendant declares she feared for her 21 safety and struck Plaintiff with her baton to protect her well-being. (Def. 22 Decl. ¶ 4). She declares she aimed for his upper left shoulder, but 23 inadvertently struck him in the back of the head. (Id.). 24

25 2 These material facts are taken from the parties' separate statements of undisputed facts 26 and pertinent cited exhibits. Disputed material facts are discussed in further detail where relevant to the Court's analysis. Facts that are immaterial for purposes of resolving the 1 Plaintiff asserts that he could not suddenly jump to his feet because he 2 uses a cane to walk and has back injuries. (Compl. at 13). Plaintiff alleges 3 that reports were falsified to cover up the attack. (Compl. at 14; Oppo. at 1). 4 The parties agree that Plaintiff was knocked unconscious during the events 5 at issue and is unable to independently remember what happened. (MSJ at 6 9; ECF No. 19-1, hereinafter “Plaintiff Depo.” at 16, 22; ECF No. 19-7, 7 Exhibit D, June 28, 2018 Video Interview of Plaintiff). According to the 8 sworn declarations of two inmate witnesses provided by Plaintiff, Plaintiff 9 was on the floor in the prone position when he reached out to Defendant and 10 she struck him in the back of his head with her baton. (Biggs Decl. ¶ 3; 11 Walker Decl. ¶¶ 3-4). 12 Medical staff immediately attended to Plaintiff because he was bleeding 13 from the back of the head. (ECF No. 19-2 at 6). Plaintiff was escorted to the 14 Emergency Transport Vehicle which took him to the prison’s medical clinic. 15 (Id.). The lacerations on the back of Plaintiff’s head required four stitches 16 and Plaintiff experienced “uncontrollable pain.” (Plaintiff Depo. at 20). 17 III. LEGAL STANDARD 18 “A party may move for summary judgment, identifying each claim or 19 defense—or the part of each claim or defense—on which summary judgment 20 is sought. The court shall grant summary judgment if the movant shows that 21 there is no genuine dispute as to any material fact and the movant is entitled 22 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A judgment must be 23 entered, “if, under the governing law, there can be but one reasonable 24 conclusion as to the verdict.” Anderson v. Liberty Lobby, 477 U.S. 242, 250 25 (1986). “If reasonable minds could differ,” judgment should not be entered in 26 favor of the moving party. Id. at 250-51. 1 at a trial on the merits, including plaintiff’s burden to establish any element 2 essential to his case. Id. at 252; Celotex Corp. v. Catrett, 477 U.S. 317, 322 3 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The moving party 4 bears the initial burden of establishing the basis of its motion and of 5 identifying the portions of the declarations, pleadings, and discovery that 6 demonstrate the absence of a genuine issue of material fact. Celotex Corp., 7 477 U.S. at 323. “A material issue of fact is one that affects the outcome of 8 the litigation and requires a trial to resolve the parties’ differing versions of 9 the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 10 More than a “metaphysical doubt” is required to establish a genuine issue of 11 material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 12 U.S. 574, 586 (1986). 13 The burden then shifts to the non-moving party to establish, beyond the 14 pleadings, that there is a genuine issue for trial. See Celotex Corp., 477 U.S. 15 at 324. To successfully rebut a properly supported motion for summary 16 judgment, the non-moving party “must point to some facts in the record that 17 demonstrate a genuine issue of material fact and, with all reasonable 18 inferences made in the plaintiff[’s] favor, could convince a reasonable jury to 19 find for the plaintiff[].” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 20 738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex Corp., 477 U.S. at 323; 21 Liberty Lobby, 477 U.S. at 249). 22 IV. DISCUSSION 23 Defendant moves for summary judgment on Plaintiff’s claims against 24 her for retaliation and excessive force. (MSJ). Defendant states that she did 25 not retaliate against Plaintiff, her use of force was reasonable, and she is 26 entitled to qualified immunity. (See MSJ). Plaintiff opposes entry of 1 material fact that must be resolved at trial. (See Oppo.). 2 a. First Amendment Retaliation Claim 3 Plaintiff alleges Defendant retaliated against him for refusing to 4 participate in officer-sanctioned fights and for reporting staff misconduct. 5 (Compl. at 15). Plaintiff alleges that in retaliation, Defendant searched his 6 cell and destroyed his property, ordered inmate Palmer to attack him, struck 7 Plaintiff on the head with her baton, and issued a false Rules Violation 8 Report. (Oppo. at 1). 9 "A prison inmate retains those First Amendment rights that are not 10 inconsistent with his status as a prisoner or with the legitimate penological 11 objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 12 (1974). It is impermissible for prison officials to retaliate against prisoners 13 for engaging in the protected activity of filing administrative grievances, as 14 doing so would leave them with “no viable mechanism to remedy prison 15 injustices.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). The First 16 Amendment protects against such “deliberate retaliation” by prison officials. 17 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 18 A prisoner suing prison officials for retaliation must prove that he was 19 retaliated against for exercising his constitutional rights and that the 20 retaliatory action did not advance legitimate penological goals. Pratt v. 21 Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Barnett v. Centoni, 31 F.3d 813, 22 815-16 (9th Cir. 1994); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 23 “Within the prison context, a viable claim of First Amendment retaliation 24 entails five basic elements: (1) An assertion that a state actor took some 25 adverse action against an inmate (2) because of (3) that prisoner's protected 26 conduct, and that such action (4) chilled the inmate's exercise of his First 1 legitimate correctional goal.” Rhodes, 408 F.3d at 567-68. 2 Plaintiff has the burden of proving the absence of a legitimate 3 correctional goal for the allegedly retaliatory conduct. Pratt, 65 F.3d at 806. 4 More than circumstantial evidence of timing alone is required for the Court 5 to find Defendant acted with a retaliatory motive. Id. at 808. 6 i. Retaliatory Cell Search 7 In his Complaint, Plaintiff alleges Defendant attempted to get him to 8 “take off on” arriving inmates in April and May of 2018. (Compl. at 15). 9 Plaintiff claims he refused to participate and reported the staff misconduct. 10 (Id.). He alleges Defendant Byrd-Hunt then started threatening that if 11 Plaintiff continued to file 22 or 602 forms, he would regret it. (Id.). Plaintiff 12 alleges that around May of 2018 Defendant threw an unprocessed 602 form 13 at his face, took his property, and broke his television. (Id.). Plaintiff 14 explains that his property was destroyed during the second cell search by 15 Defendant, which took place around the beginning of May 2018. (Plaintiff 16 Depo. at 6-7). Plaintiff appears to believe that because his cell was searched 17 soon after it had last been searched, Defendant retaliated against him. (Id. 18 at 6). 19 In her sworn declaration, Defendant states that the searches at issue 20 were conducted at random and not in retaliation. (Def. Decl. ¶ 8). Defendant 21 explains that random cell searches serve the legitimate penological purpose 22 of inspecting “for contraband that threatens harm to the prison, the staff, and 23 the inmates.” (Id.). Defendant further explains that the relatively quick 24 succession of cell searches is “an accepted correctional tactic…because 25 inmates will sometimes believe that a cell that has just been searched is now 26 safe to hide contraband, thinking that the cell won’t be searched again for 1 Plaintiff provides no arguments or evidence beyond his pleadings to 2 demonstrate that his cell was searched and property destroyed because 3 Defendant retaliated against him. Plaintiff only restates his allegations. 4 (Oppo. at 1). Conclusory allegations are insufficient to defeat a motion for 5 summary judgment. Berg v. Kincheloe, 794 F.2d 457, 458 (9th Cir. 1986). 6 Accordingly, Plaintiff has failed to establish any causal connection between 7 Defendant’s search of his cell and her retaliatory motive. In line with 8 Defendant’s explanation, the Supreme Court has acknowledged that random 9 cell searches are “essential to the effective security of penal institutions.” 10 Hudson v. Palmer, 468 U.S. 517, 529 (1984). 11 The Court RECOMMENDS that summary judgment be granted for 12 Defendant on Plaintiff’s claims that Defendant conducted a cell search and 13 destroyed his property to retaliate against Plaintiff in violation of the First 14 Amendment. 15 ii. Force Used in Retaliation 16 Plaintiff also alleges that Defendant Byrd-Hunt ordered inmate Palmer 17 to attack Plaintiff in retaliation. (See Compl.). Plaintiff alleges that when 18 inmate Palmer struck him, he said, “Compliments of Byrd-Hunt.” (Id. at 11). 19 Plaintiff further alleges that Defendant violently struck him in the head with 20 her baton as a “calculated retaliatory act, due to plaintiff[’s] several 21 complaints of her attempts to utilize the plaintiff in gladiator fights.” 22 (Compl. at 13). Plaintiff alleges that as Defendant struck him in the head 23 with her baton, she said he should have listened and “go ahead and 602 this.” 24 (Id. at 12). 25 In support of her motion for summary judgment, Defendant provides 26 her declaration stating, “I never ordered inmate St. Sauver to attack or fight 1 she did not order inmate Palmer to attack Plaintiff, and never asked or 2 ordered any inmate to attack Plaintiff. (Id. at ¶ 7). Defendant states that 3 she “did not retaliate against Plaintiff at any time or for any reason” and that 4 all of her actions relative to Plaintiff were motivated by legitimate 5 correctional goals. (Id. at ¶ 9). Defendant explains that she used force solely 6 to gain his compliance with her orders to “get down,” and to protect herself 7 from his attack. (Id. at ¶ 7). 8 Beyond Plaintiff’s allegations of retaliation in his Complaint, which he 9 references in his opposition, Plaintiff provides no direct or circumstantial 10 evidence of Defendant’s retaliatory motive. Plaintiff has admitted he does 11 not remember what happened during the incident because he was knocked 12 unconscious. (Plaintiff Depo. at 16, 22; ECF No. 19-7, Exhibit D, June 28, 13 2018 Video Interview of Plaintiff). As Plaintiff does not remember the 14 incident, there is no support for his allegation that inmate Palmer said, 15 “Compliments of Byrd-Hunt” prior to striking him or that Defendant said “go 16 ahead and 602 this” prior to hitting him with her baton. The declarations 17 Plaintiff submitted in opposition do not refer to his claims that Defendant 18 Byrd-Hunt retaliated against him. (Oppo. at 21-24). Plaintiff’s unsupported 19 allegations are insufficient to withstand summary judgment. See Berg, 794 20 F.2d at 458. 21 Accordingly, Plaintiff’s allegations are not supported by the record and 22 the Court RECOMMENDS summary judgment be granted for Defendant on 23 Plaintiff’s claims that Defendant used force to retaliate against Plaintiff. 24 iii. Rules Violation Report Issued in Retaliation 25 Plaintiff further alleges that Defendant tried to cover up her retaliatory 26 use of force by fabricating a Rules Violation Report for battery on a peace 1 13). Defendant’s declaration supports that she did not issue a Rules 2 Violation Report against Plaintiff in retaliation. She declares, “I did not 3 retaliate against Plaintiff at any time for any reason.” (Def. Decl. ¶ 9). 4 Plaintiff has failed to set forth any evidence supporting that his filing of 5 administrative grievances was related to the issuance of this Rules Violation 6 Report. Mere allegations are not sufficient to defeat a motion for summary 7 judgment. Berg, 794 F.2d at 458. Therefore, the Court RECOMMENDS 8 summary judgment be granted for Defendant on Plaintiff’s claim that 9 Defendant issued a Rules Violation Report in retaliation. 10 1. Plaintiff’s Objection to the Admission of the 11 Amended Incident Report 12 Additionally, Plaintiff argues in his opposition that “the introduction of 13 the Amended Incident Report should be deemed inadmissible.” (Oppo. at 4). 14 Plaintiff identifies various discrepancies among the staff reports of the 15 incident. (Id. at 2-5). Most significantly, he points out that the Rules 16 Violation Report (ECF No. 25 at 12) says, “As soon as he was struck by the 17 baton, Inmate St[.] Sauver released his hold of me.” In contrast, the incident 18 report (ECF No. 25 at 9) says, “My baton strike had negative results as 19 Inmate St[.] Sauver maintained his grip on my uniform.” It is not clear to the 20 Court which report (or portion) Plaintiff wishes to exclude or why it may be 21 inadmissible. Accordingly, the Court OVERRULES Plaintiff’s objection. 22 b. Eighth Amendment Excessive Force Claim 23 Plaintiff also claims Defendant used excessive force against him in 24 violation of his Eighth Amendment rights.3 The Eighth Amendment 25

26 3 Plaintiff’s Complaint also includes an excessive force claim under the 14th Amendment. 1 prohibits the infliction of cruel and unusual punishment. U.S. CONST. 2 amend. VIII. To prevail on an Eighth Amendment claim under § 1983, the 3 plaintiff must show that he suffered an objectively “sufficiently serious” 4 deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. 5 Seiter, 501 U.S. 294, 298 (1991)). The plaintiff must also show that 6 defendant, subjectively, had a culpable state of mind in allowing or causing 7 the plaintiff’s deprivation to occur. Id. (citing Hudson v. McMillian, 503 U.S. 8 1, 8 (1992)). 9 “[W]henever prison officials stand accused of using excessive physical 10 force in violation of the Cruel and Unusual Punishments Clause, the core 11 judicial inquiry is that set out in Whitley: whether force was applied in a 12 good-faith effort to maintain or restore discipline, or maliciously and 13 sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing Whitley v. Albers, 14 475 U.S. 312). To determine whether the force used was excessive, courts 15 consider factors such as: 1) “the need for the application of force,” 2) “the 16 relationship between the need and the amount of force that was used,” and 3) 17 “the extent of injury inflicted.” Whitley, 475 U.S. at 321. Courts should also 18 consider factors such as: 4) “the extent of the threat to the safety of staff and 19 inmates, as reasonably perceived by the responsible officials on the basis of 20 facts known to them” and 5) “any efforts made to temper the severity of a 21 forceful response.” (Id.). “The absence of serious injury is…relevant to the 22

23 24 (See Compl. at 3). As that claim is best addressed under the Eighth Amendment and has not been briefed by the parties, it is not discussed herein. See Cty. of Sacramento v. Lewis, 25 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)) (“‘[W]here a particular Amendment provides an explicit textual source of constitutional protection 26 against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these 1 Eighth Amendment inquiry but does not end it.” Hudson, 503 U.S. at 7. 2 Plaintiff alleges that Defendant used excessive force both by ordering 3 inmate Palmer to attack Plaintiff and by striking Plaintiff in the head with a 4 baton. (Compl. at 11-12). The Court has found that Plaintiff failed to submit 5 sufficient evidence supporting his claim that Defendant ordered inmate 6 Palmer to attack Plaintiff. (See discussion supra Part IV(a)(ii)). Accordingly, 7 the Court RECOMMENDS that summary judgment be GRANTED for 8 Defendant on the portion of Plaintiff’s excessive force claim relating to the 9 attack by inmate Palmer. 10 Plaintiff’s claim regarding the baton strike requires further analysis. 11 Though the Court has found Defendant is entitled to summary judgment on 12 Plaintiff’s claim that Defendant struck him with a baton in retaliation, the 13 circumstances of the baton strike remain unclear. Defendant and Plaintiff 14 provide conflicting accounts regarding the circumstances leading up to 15 Defendant striking Plaintiff in the head with her baton. 16 According to Defendant and other prison staff witnesses, as Defendant 17 moved to handcuff Plaintiff, who was on the ground, Plaintiff suddenly 18 jumped to his feet and reached out, grabbing Defendant’s waist with both 19 hands. (Def. Decl. ¶ 4; Jimenez Decl. ¶ 4). Defendant ordered Plaintiff to 20 “get down,” but Plaintiff did not obey. (Jimenez Decl. ¶ 4). Defendant 21 declares she feared for her safety and struck Plaintiff with her baton to 22 protect her safety and well-being. (Def. Decl. ¶ 4). She declares she aimed 23 for his upper left shoulder, but inadvertently struck him in the back of the 24 head. (Id.). 25 Plaintiff disputes Defendant’s description. (Oppo. at 3) (disputing that 26 1 Plaintiff came to his feet or grabbed hold of Byrd-Hunt’s waist).4 In support, 2 Plaintiff provides the sworn declarations of two inmate witnesses and his 3 own declaration. Plaintiff’s declaration cannot be considered, as both sides 4 have stated Plaintiff is unable to independently remember the incident. 5 (MSJ at 9; Plaintiff Depo. at 16, 22; ECF No. 19-7, Exhibit D, June 28, 2018 6 Video Interview of Plaintiff). According to inmate Biggs, after officers 7 handcuffed inmate Palmer, “C.O. Byrd-Hunt remained standing next to St. 8 Sauver as he layed face down on the floor. Inmate St. Sauver then reached 9 out to C.O. Byrd-Hunt. She then took out her baton striking St. Sauver in 10 the back of the head while he layed face down…” (Biggs Decl. ¶ 3). Inmate 11 Walker’s declaration similarly states: “While laying in the prone position 12 inmate St. Sauver reached out towards Byrd-Hunt. Byrd Hunt then took out 13 her baton and struck St. Sauver in back of the head…” (Walker Decl. ¶¶ 3-4). 14 Plaintiff’s witnesses state that Defendant struck Plaintiff while he was 15 on the ground, when he merely “reached out” to Defendant. (Biggs Decl. ¶ 3; 16 Walker Decl. ¶¶ 2-4). Defendant’s reply does not address the inmates’ 17 statements that Defendant hit Plaintiff in the head with her baton while 18 Plaintiff remained on the ground. (Reply at 3). 19 Whether Plaintiff was lying facedown on the ground or had jumped to 20 his feet and was holding Defendant by the waist when Defendant struck him 21 with her baton remains disputed, and the Court cannot make credibility 22 determinations or weigh evidence at this stage. See Bator v. State of Hawaii, 23 39 F.3d 1021, 1026 (9th Cir. 1994). This fact is critical to the Court’s ability 24

25 4 Plaintiff also disputes Defendant’s statement that Plaintiff failed to release her after 26 being struck on the head with her baton. The Court declines to address this issue as it is not material to the analysis of whether Defendant Byrd-Hunt used excessive force when 1 to apply Whitley factors 1 (“the need for the application of force”), 2 (“the 2 relationship between the need and the amount of force that was used”), and 4 3 (“the extent of the threat to the safety of staff and inmates, as reasonably 4 perceived by the responsible officials on the basis of facts known to them”). 5 Whitley, 475 U.S. at 321. 6 Viewing the disputed facts in the light most favorable to Plaintiff, a jury 7 could reasonably find that Defendant’s baton strike constituted excessive 8 force. “[B]aton strikes are generally considered ‘intermediate force,’ and such 9 blows are ‘capable of inflicting significant pain and causing serious injury.’” 10 Garlick v. Cty. of Kern, 167 F. Supp. 3d 1117, 1147 (quoting Young v. Cty. of 11 Los Angeles, 655 F.3d 1156, 1162 (9th Cir. 2011)). “Baton blows to the head, 12 however, are recognized as deadly force.” Id. It is undisputed that 13 Defendant Byrd-Hunt witnessed inmate Palmer hitting Plaintiff in the back 14 of the head with closed fists. (Def. Decl. ¶ 3). According to the declarations of 15 Plaintiff’s witnesses, Defendant then struck Plaintiff in the same place with 16 her baton while he was lying facedown on the ground and had merely 17 “reached out” to her. (Walker Decl. ¶ 3; Biggs Decl. ¶ 3). Drawing all 18 reasonable inferences in Plaintiff’s favor, a jury could find that the baton 19 strike was made “maliciously and sadistically to cause harm” rather than “in 20 a good-faith effort to maintain or restore discipline.” Hudson, 503 U.S. at 7. 21 See Jimenez v. Sambrano, No. 04cv1833-L(PCL), 2007 U.S. Dist. LEXIS 22 102152, 2008 WL 538441, at *14 (S.D. Cal. Sept. 20, 2007) (adopted on Report 23 and Recommendation, Jimenez v. Sambrano, No. 04cv1833-L(PCL), 2008 24 U.S. Dist. LEXIS 14741 (S.D. Cal. Feb. 26, 2008)) (denying summary 25 judgment as to Plaintiff’s excessive force claims where there was evidence to 26 support that Defendants beat Plaintiff with batons while he was prone on the 1 Defendant also argues that the third Whitley factor, the extent of 2 Plaintiff’s injury, does not support an excessive force claim. (MSJ at 16). 3 Defendant argues, “Plaintiff suffered a minor laceration to his scalp that only 4 needed staples to close, and imaging showed no injuries to his head or neck.” 5 (Id.). In opposition, Plaintiff has provided sworn declarations of inmate 6 witnesses who state that Defendant’s baton strike resulted in “busting his 7 head open,” “knocking him unconscious,” and “massive bleeding to his head 8 and his body causing his body to go limp.” (Biggs Decl. ¶ 3; Walker Decl. ¶ 4). 9 “An inmate who is gratuitously beaten by guards does not lose his ability to 10 pursue an excessive force claim merely because he has the good fortune to 11 escape without serious injury." Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per 12 curiam). Accordingly, the Court finds the extent of Plaintiff’s injury does not 13 warrant summary judgment for Defendant. 14 Based on the conflicting declarations presented by both sides, and in the 15 absence of any objective video evidence of the incident, Plaintiff has 16 established a genuine issue of material fact sufficient to rebut Defendant’s 17 motion for summary judgment. As such, the Court RECOMMENDS 18 Defendant’s motion for summary judgment as to Plaintiff’s excessive force 19 claim regarding Defendant striking him with her baton be DENIED. 20 c. Qualified Immunity 21 Defendant argues that she did not violate Plaintiff’s constitutional 22 rights, and even assuming a constitutional violation occurred, she is still 23 entitled to qualified immunity because “[r]easonable prison officials could 24 have believed that Plaintiff’s continued disregard of numerous lawful orders 25 and his violent behavior warranted the use of force necessary to regain 26 control of Plaintiff and end his attack on Byrd-Hunt.” (MSJ at 20-21). 1 violate clearly established statutory or constitutional rights of which a 2 reasonable person would have known.’” White v. Pauly, 137 S.Ct. 548, 551 3 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). When 4 considering whether an officer is entitled to qualified immunity, the Court 5 considers “(1) whether there has been a violation of a constitutional right; 6 and (2) whether that right was clearly established at the time of the officer’s 7 alleged misconduct.” S.B. v. Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 8 2017). A plaintiff must prove both topics of inquiry to establish that officials 9 are not entitled to qualified immunity. Marsh v. Cty. of San Diego, 680 F.3d 10 1148, 1152 (9th Cir. 2012). 11 A district court may address these questions in the order most 12 appropriate to “the circumstances of the particular case at hand.” Pearson v. 13 Callahan, 555 U.S. 223, 236 (2009). Thus, if a court determines that 14 Plaintiff’s allegations do not support a statutory or constitutional violation, 15 “there is no necessity for further inquiries concerning qualified immunity.” 16 Saucier v. Katz, 533 U.S. 194, 201 (2001). “[T]he clearly established law must 17 be ‘particularized’ to the facts of the case.” White, 137 S.Ct. at 552 (quoting 18 Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although the court “does 19 not require a case directly on point for a right to be clearly established, 20 existing precedent must have placed the statutory or constitutional question 21 beyond debate.” White, 137 S.Ct. at 551 (internal quotation omitted). 22 The Court must view the evidence in the light most favorable to the 23 plaintiff. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). As 24 discussed above, Plaintiff has provided evidence that Defendant struck him 25 with her baton while he was in the prone position and had “reached out” to 26 her. (Walker Decl. ¶ 3). Contrary to Defendant’s characterization, these 1 at 4). Defendant’s reliance on Plaintiff’s admission that he grabbed 2 Defendant is misplaced because both sides have agreed that Plaintiff cannot 3 independently remember the incident. (MSJ at 9; Plaintiff Depo. at 16, 22; 4 ECF No. 19-7, Exhibit D, June 28, 2018 Video Interview of Plaintiff). 5 Viewing the evidence in the light most favorable to Plaintiff, he has a 6 viable claim that Defendant’s use of force was not a “good-faith effort to 7 maintain or restore discipline” and therefore violated his Eighth Amendment 8 rights. Whitley, 475 U.S. at 320-21. Defendant has not briefed whether 9 striking Plaintiff was constitutional even if Plaintiff had remained in the 10 prone position. Nor has Defendant briefed whether a reasonable officer in 11 Defendant’s position would have believed this use of force was not a violation 12 of Plaintiff’s rights if Plaintiff was on the ground when struck in the head 13 with the baton. In light of this, the Court declines to find Defendant is 14 entitled to qualified immunity. Accordingly, the Court RECOMMENDS that 15 Defendant is NOT ENTITLED to qualified immunity with respect to 16 Plaintiff’s excessive force claim regarding Defendant striking him with her 17 baton.5 18 V. CONCLUSION 19 For the reasons outlined above, IT IS HEREBY RECOMMENDED 20 that the District Court issue an Order: (1) Approving and Adopting this 21 Report and Recommendation; and (2) GRANTING IN PART and 22 DENYING IN PART Defendant’s Motion for Summary Judgment as 23

24 25 5 Having found that Defendant is entitled to summary judgment on the merits of Plaintiff's First Amendment retaliation claims and Eighth Amendment excessive force 26 claims arising from inmate Palmer’s attack, there is no need to consider the defense of qualified immunity with respect to those claims. See Wilkie v. Robbins, 551 U.S. 537, 567 1 ||}explained below: 2 1) Defendant’s Motion be GRANTED as to all of Plaintiffs First 3 Amendment retaliation claims; 4 2) Defendant’s Motion be GRANTED as to Plaintiffs claim that 5 Defendant used excessive force in violation of the Eighth Amendment 6 by ordering another inmate to attack Plaintiff; and 7 3) Defendant’s Motion be DENIED as to Plaintiffs claim that Defendant 8 used excessive force in violation of the Eighth Amendment by striking 9 him in the head with her baton and Defendant’s claim of qualified 10 immunity. 11 IT IS HEREBY ORDERED that any written objections to this Report 12 ||must be filed with the Court and served on all parties no later than August 13 ||20, 2021. The document should be captioned “Objections to Report and 14 || Recommendation.” 15 IT IS FURTHER ORDERED that any reply to the objection shall be filed 16 || with the Court and served on all parties no later than August 27, 2021. The 17 || parties are advised that the failure to file objections within the specified time 18 || may waive the right to raise those objections on appeal of the Court’s order. 19 Turner v. Duncan, 158 F. 3d 449, 455 (9th Cir. 1998). 20 IT IS SO ORDERED. Dated: August 5, 2021 Mitel by. [= Hon. Mitchell D. Dembin 23 United States Magistrate Judge 24 25 26 27