1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 17-CV-1185-AJB(WVG)

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION ON

DEFENDANT’S MOTION FOR

14 F. AVILES,

SUMMARY JUDGMENT

15 Defendant. [Doc. No. 60.] 16 17 18 19 Plaintiff Allen Hammler, a state prisoner, has sued correctional officer Defendant 20 Aviles under 42 U.S.C. § 1983. Hammler alleges Aviles used excessive force against him 21 by performing a takedown maneuver in 2016. Hammler further alleges that after he made 22 a recorded statement accusing Aviles of excessive force in connection with the incident, 23 Aviles retaliated against him by filing a disciplinary report based on the same incident. 24 Defendant Aviles has moved for summary judgment on both claims. The Court 25 RECOMMENDS that Defendant’s summary judgment motion be GRANTED, and that 26 judgment be entered in his favor. 27 / / / 28 / / / 1 I. BACKGROUND & UNDISPUTED FACTS 2 A. Defendant Performed a Takedown of Hammler During an Escort in November 3 2016. 4 Allen Hammler, an adjudicated vexatious litigant,2 is an inmate at Richard J. 5 Donovan Correctional Facility in San Diego, California. On November 7, 2016, 6 correctional officer Aviles escorted Hammler from a law library holding cell back to 7 Hammler’s assigned cell. (First Amended Complaint, Doc. No. 37 at 3.) Hammler asked 8 Aviles for permission to retrieve paperwork from an inmate in another holding cell, and 9 Aviles agreed to allow him to do so. (Id.) In reality, however, Hammler was attempting to 10 retrieve food from this inmate. (Id.) When Aviles discovered that Hammler had lied about 11 what he was trying to retrieve, he told Hammler to keep walking. (Id.) Hammler then asked 12 Aviles to let him stop at a different cell to retrieve a document from a different inmate. (Id. 13 at 4.) Aviles again agreed to allow this. (Id.) Once Hammler retrieved the document, Aviles 14 resumed escorting him back to his cell. (Id.) Up to this point, Aviles’s demeanor was 15 normal and the escort was uneventful. (See Decl. J. Fisher Ex. 1 (Hammler Tr.) at 34:6- 16 37:6.) 17 “[A]ll of the sudden,” Aviles began to “manhandle” Hammler by “yanking his arm 18 and Henching [sic] him up to the point his shoulder was being raised and he was being 19 Drug [sic] rather than being led/escorted.” (Doc. No. 37 at 4.) Hammler alleges that he 20 verbally complained about the treatment, but Aviles responded only with: “Then hurry up.” 21 (Id.) At that point, Hammler stopped walking and refused to continue. (Id. at 4-5.) Aviles 22 23

24 25 1 In describing the facts herein, the Court credits Hammler’s deposition testimony and the three inmates’ declarations he submitted in opposition to the MSJ. The Court states the 26 facts in the light most favorable to him, as the non-moving party. The Court expresses no 27 opinion as to whether these facts could or would be proven at trial.

28 2 1 ordered Hammler to continue walking, but Hammler refused again, telling Aviles that he 2 would not continue until Aviles called another officer to assist with his escort. (Id. at 5.) 3 Aviles then said that he did not need another officer to assist him, to which Hammler 4 responded: “I’m not moving until another Officer comes over here. It’s because of Rookies 5 like you trying to be tough that I have all those Tags on my door now and I’m suing them.” 6 (Id.) Aviles responded: “You gonna do this now, you really want to do this right now?” to 7 which Hammler replied: “Yup.” (Id.) 8 At that point, Aviles performed a takedown maneuver that brought Hammler to the 9 ground. (Id. at 5-6.) Once on the ground, Aviles held Hammler down by placing his weight 10 on Hammler, with his knee on Hammler’s lower back. (Id. at 6.) Other officers responded 11 to the incident and applied leg restraints. (Hammler Tr. at 47:9-48:3; Decl. F. Aviles ¶ 7.) 12 One of the officers then escorted Hammler to a holding cell. (Decl. F. Aviles ¶ 7.) 13 Three other prisoners apparently witnessed the above events to varying degrees, and 14 Hammler submitted their declarations in support of his opposition to the MSJ. Inmate Rico 15 Riley only witnessed Aviles escort Hammler to cell 104, where Hammler and the inmate 16 in that cell exchanged “documents of some kind.” (Decl. Riley, Doc. No. 70 at 8.) Missing 17 from Riley’s declaration is any mention of Hammler and Aviles’s interactions or Aviles 18 taking Hammler to the ground or otherwise using any force on him. (See id.) 19 Inmate Charles Cleveland declares he saw Aviles escorting Hammler by the arm 20 while it appeared they were arguing. (Decl. Cleveland, Doc. No. 70 at 9.) Cleveland saw 21 the two stop walking and saw them standing in the middle of the floor while arguing. (Id.) 22 They “exchanged words” for “about a minute” when Cleveland saw Aviles take Hammler 23 to the ground by positioning himself behind Hammler and “wrapping his arms around 24 [Hammler] to bear-hug [sic] him.” (Id.) Cleveland saw Aviles pick “Hammler up and 25 slam[] him to the ground.” (Id.) Although Cleveland states he was “surprised by this 26 because Hammler was not doing anything but standing there,” Cleveland’s declaration 27 does not include anything about what Hammler said to Aviles. (See id.) 28 1 Inmate Dennis Armstrong declares essentially the same as inmate Cleveland but 2 with minor additional details. He describes seeing Aviles and Hammler walking and 3 arguing, standing and arguing for a minute, Aviles placing Hammler in a “bear hug,” and 4 Aviles “slamming” Hammler on the ground. (Decl. Armstrong, Doc. No. 70 at 10.) In 5 similar fashion as Cleveland, Armstrong also expresses surprise at seeing this because he 6 did not see Hammler doing “anything to” elicit this action. (Id.) Like Cleveland, Armstrong 7 also does not include any details about the content of Hammler and Aviles’s argument. 8 (See id.) Armstrong adds that he did not see Hammler attempting to “kick [Aviles] or 9 anything.” (Id.) 10 B. Doctors Examined Hammler and Found No Significant Injury. 11 Following the November 7 incident, Hammler visited prison medical staff on several 12 occasions. Immediately after the incident, consistent with CDCR protocol, a registered 13 nurse medically evaluated Hammler. (Decl. J. Guirbino Ex. 1 at 15.) The nurse noted a 14 bump on the left side of Hammler’s head, as well as some bruising and abrasions on his 15 left shoulder and right triceps area. (Id.) At that time, Hammler declined further treatment, 16 opting instead to make a video-recorded statement alleging excessive force. (Hammler Tr. 17 at 89:2-11.) 18 Hammler elected to return to the medical office that afternoon. (See Decl. C. 19 Domingo Ex. 1.) He was first seen by the nurse who had evaluated him after the incident 20 and then by Dr. Barenchi. (See id.; Decl. R. Barenchi ¶¶ 3-8.) Hammler complained of 21 mild ringing in his ears and a moderate headache. (Decl. R. Barenchi ¶ 4 & Ex. 1.) He did 22 not complain of any pain to his arm or shoulder. (Id. ¶ 8 & Ex. 1.) Hammler reported no 23 loss of consciousness, no nausea or vomiting, no changes in vision, and no weakness or 24 numbness. (Id.) Dr. Barenchi also noted that Hammler did not appear to be in acute distress 25 and was laughing and smiling during the visit, which suggested to him that his injuries 26 were not significant. (Id. ¶¶ 5-6.) Hammler was offered pain medication for his headache, 27 but he declined. (Id.) 28 1 The next day, November 8, Hammler submitted a Health Care Services Request 2 Form (HCS Form) asking to see a doctor, insisting that he believed the November 7 3 takedown had fractured his shoulder. (Decl. C. Domingo Ex. 3.) He submitted another HCS 4 Form the next day making the same assertion. (Id. Ex. 4.) On November 10, Hammler 5 visited Dr. Clayton, who examined him in connection with his alleged shoulder injury. 6 (Decl. D. Clayton ¶¶ 3-4 & Ex. 1.) Dr. Clayton reported that Hammler’s left shoulder 7 showed normal range of motion, that his arm strength seemed normal, and that there were 8 no bony abnormalities. (Id. ¶ 5.) Hammler again declined pain medication. (Id. ¶ 4.) Dr. 9 Clayton concluded there was no evidence that Hammler suffered any serious injury, but 10 nevertheless ordered x-rays at Hammler’s request. (Id. ¶ 6.) The x-rays showed no acute 11 injury to Hammler’s shoulder, and Dr. Clayton went over those findings with Hammler at 12 a follow-up visit the next month. (See id. ¶¶ 8-9 & Exs. 2-3.) 13 C. Hammler Received a Rules Violation for Willfully Resisting a Peace Officer. 14 On November 10—three days after the incident—Aviles issued Hammler a Rules 15 Violation Report (RVR) for willfully resisting a peace officer. (Decl. F. Aviles ¶¶ 9-11 & 16 Ex. 2.) The RVR charged Hammler with violating Title 15 of the California Code of 17 Regulations, section 3005(d)(1), based on Hammler’s resisting the November 7 escort. (Id.) 18 After receiving the RVR, but before it was adjudicated, Hammler submitted a 19 grievance on CDCR Form 602. (Decl. J. Guirbino Ex. 1 at 17-18.) In it, Hammler insisted 20 the November 7 takedown was “unnecessary and excessive force” and that the RVR was 21 “slander, libel[], defam[ation].” (Id.) 22 On December 13, after a period of due process during which Hammler had the 23 assistance of an investigative employee to help him collect evidence and question 24 witnesses, an RVR hearing occurred. (Decl. J. Guirbino Ex. 2 at 5-6, 8.) Hammler was 25 present, in good health, and was allowed to respond to the charges. (Id. at 8-10.) After the 26 hearing, a Senior Hearing Officer found Hammler guilty and sanctioned him with the loss 27 of 90 days of good-time credits. (Id. at 11-13.) 28 1 The RVR and the associated penalty were approved by a Chief Disciplinary Officer 2 (id. at 14-15) and have never been overturned (Hammler Tr. at 61:5-9). 3 D. Procedural History 4 Hammler filed this suit on June 12, 2017, raising three claims, two of which remain. 5 (Doc. Nos. 1, 37.) First, Hammler asserts that Aviles used excessive force in violation of 6 the Eighth Amendment when he performed the November 7, 2016, takedown. (Doc No. 37 7 at 3.) Second, Hammler alleges that the RVR Aviles issued was in retaliation for Hammler 8 accusing Aviles of excessive force. (Id. at 7.) Hammler’s original complaint raised a third 9 claim, alleging a federal due-process violation (Doc. No. 1 at 9), but the Court dismissed 10 that cause of action for failure to state a claim (Doc. No. 13 at 2). 11 After granting Defendant’s motion to dismiss the third claim, the Court granted 12 Hammler leave to cure certain deficiencies in the third claim. (Doc. No. 13.) After 13 significant delay, however, the Court issued an Order accepting the amended complaint 14 with only the excessive-force and retaliation claims. (Doc. No. 36.) In that same Order, the 15 Court also declared Hammler a vexatious litigant. 16 On July 21, 2021, Defendant filed the pending summary judgment motion. (Doc. 17 No. 60.) On October 29, 2021, Hammler filed his opposition after being granted an 18 extension of time to do so. On November 9, 2021, Aviles filed a reply brief. 19 II. STANDARD OF REVIEW 20 A party may move for summary judgment as to a claim or defense. Fed. R. Civ. 21 Proc. 56(a). Summary judgment is appropriate where the Court is satisfied there is “no 22 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 23 of law.” Id. Material facts are those that may affect the outcome of the case. Anderson v. 24 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists 25 only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 26 party.” Id. When the Court considers the evidence presented by the parties, “[t]he evidence 27 28 1 of the non-movant is to be believed, and all justifiable inferences are to be drawn in his 2 favor.” Id. at 255. 3 The initial burden of establishing the absence of a genuine issue of material fact falls 4 on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party 5 may meet this burden by identifying the “portions of the pleadings, depositions, answers 6 to interrogatories, and admissions on file, together with the affidavits, if any,” that show 7 an absence of dispute regarding a material fact. Id. (internal quotations omitted). 8 Once the moving party satisfies this initial burden, the nonmoving party must 9 “designate specific facts showing that there is a genuine dispute for trial.” Id. at 324 10 (internal quotation marks omitted). This requires “more than simply show[ing] that there 11 is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 12 Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the 13 nonmoving party must “by [his] own affidavits, or by the ‘depositions, answers to 14 interrogatories, and admissions on file,’ designate ‘specific facts’” that would allow a 15 reasonable fact finder to return a verdict for the nonmoving party. Pac. Gulf Shipping Co. 16 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (quoting Celotex, 17 477 U.S. at 324). The nonmoving party cannot oppose a properly supported summary 18 judgment motion by “rest[ing] on mere allegations or denials of his pleading[s].” Anderson, 19 477 U.S. at 256. 20 Summary judgement is proper if “the pleadings, depositions, answers to 21 interrogatories, and admissions on file, together with the affidavits, if any, show that there 22 is no genuine issue as to any material fact and that the moving party is entitled to judgement 23 as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson, 477 U.S. at 247-48. Notably, the 24 mere presence of a factual dispute does not defeat summary judgment; rather, the disputed 25 fact must be material, and the dispute must be genuine. Anderson, 477 U.S. at 248. A fact 26 is material when it might affect the outcome of the suit, and the dispute is genuine if the 27 evidence is such that a reasonable jury could resolve the dispute in favor of the nonmoving 28 1 party. Motus v. Pfizer, Inc., 196 F. Supp. 2d 984 (C.D. Cal. 2001) (citing Anderson, 477 2 U.S. at 248.) 3 A defendant’s burden on a summary-judgment motion is to point to parts of the 4 record that demonstrate an apparent absence of a genuine dispute of material fact. See 5 Celotex Corp., 477 U.S. at 323. If the defendant meets that burden, the burden shifts to the 6 plaintiff to establish that a genuine issue of a material fact exists. Matsushita Elec. Indus. 7 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish a relevant factual 8 dispute, the plaintiff may not rely on its pleadings, but must tender evidence of specific 9 facts in the form of declarations, deposition transcripts, or other admissible evidence. Fed. 10 R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. If the plaintiff fails in its burden, the 11 court should enter summary judgment for the defendant. 12 Courts should “construe liberally motion papers and pleadings filed by pro se 13 inmates and should avoid applying summary judgment rules strictly.” Wilk v. Neven, 956 14 F.3d 1143, 1147 (9th Cir. 2020) (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 15 2010)). 16 III. DISCUSSION 17 A. No Genuine Dispute of Material Fact Exists as to Hammler’s Excessive Force 18 Claim. 19 In light of the undisputed facts, the takedown maneuver that Defendant Aviles used 20 on Hammler was objectively reasonable under the circumstances and cannot support a 21 claim of excessive force. 22 The core inquiry when evaluating an excessive force claim is “whether the force was 23 applied in a good-faith effort to maintain order or restore discipline, or maliciously and 24 sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. 25 Albers, 475 U.S. 312, 321-22 (1986). In this evaluation, courts weigh five factors: (1) the 26 need for application of force; (2) the relationship between the need and the amount of force 27 that was used; (3) the extent of injury inflicted, (4) the threat reasonably perceived by the 28 1 officer; and (5) the efforts made to temper the severity of a forceful response. Hudson, 503 2 U.S. at 6-7; see also Whitley, 475 U.S. at 321. 3 Here, all of these factors objectively weigh against finding that the takedown in this 4 case violated the Eighth Amendment. First, using force generally was necessary. Hammler 5 admits he stopped walking during a prison escort and refused to comply with Aviles’s 6 orders to continue walking to his cell. (See Decl. S. DeFoe ¶¶ 6-9; Doc. No. 37, ¶¶ 8-10; 7 Hammler Tr. at 65:8-20.) Moreover, Hammler implicitly threatened Aviles: Hammler 8 referred to the placards on his door, which Aviles understood as referring to notices relating 9 to his various escort restrictions, implying that Hammler had been in altercations with staff 10 or otherwise been disciplined for being unruly in the past. (Decl. F. Aviles ¶ 4; see also 11 Hammler Tr. at 44:5-18.) Indeed, even Hammler acknowledges that Aviles’s use of force 12 was in response to his failure to comply with Aviles’s commands. (Hammler Tr. at 43:25- 13 44:4; 45:11-20; 65:8-13.) In light of Hammler’s comments and refusal to comply with 14 orders to continue walking, some amount of force was necessary to maintain order and gain 15 Hammler’s compliance and restore order. See Munoz v. Cal. Dep’t of Corr., No. CV95- 16 0346-ABC(RC), 1996 U.S. Dist. LEXIS 17759, at *14-15 (C.D. Cal. Oct. 10, 1996) 17 (“Correctional officers may be required to use some measure of force if an inmate refuses 18 a valid order.”). In the context of a prison, inmate compliance with lawful commands from 19 correctional officers is essential to maintenance of order, which quickly devolves if inmates 20 are permitted to defy and resist orders at will. Moreover, as is apparent from Hammler’s 21 declarations, at least three inmates witnessed Hammler’s disobedience and resistance to 22 Aviles’s lawful command. Had Aviles ignored or failed to gain Hammler’s compliance 23 while in full view of other inmates, good order and discipline would have further eroded. 24 Accordingly, Hammler’s refusal to comply with a lawful command, coupled with his 25 aggressive language, necessitated the use of force to gain his compliance. 26 Second, the amount of force used was proportional to the need. Hammler stopped 27 walking in the middle of a prison escort and refused to comply with orders to continue 28 moving. (See Decl. S. DeFoe ¶¶ 6-9; ECF No. 37, ¶¶ 8-10; Hammler Tr. at 65:8-20.) Aviles 1 performed a takedown maneuver, brought him to the ground, subdued him, and gained 2 control of Hammler. (Decl. F. Aviles ¶¶ 3-6.) There is no evidence that Aviles used other, 3 greater force to accomplish this. There is no evidence of punches, kicking, knee strikes, 4 pressure point pain application, use of chemical agents, or the use of a baton or other 5 objects. Aviles simply took Hammler to the ground and held him there, and Hammler’s 6 three witnesses’ declarations support this. Accordingly, the forced used here was 7 objectively minimal and proportional to the need gain control of Hammler given that 8 Hammler was not, for example, kicking or otherwise attempting to actively fight Aviles. 9 (See Decl. S. Defoe ¶¶ 10-19.) 10 Third, Hammler’s injuries were minimal, if not de minimis. Hammler claims he hit 11 his shoulder and head on the ground during the November 7 incident. (See Hammler Tr. 12 80:18-82:8.) The medical evaluation immediately thereafter showed he had a bump on the 13 head and some bruising and abrasions on his shoulder. (J. Guirbino Ex. 1 at 15.) Hammler’s 14 injuries were so unremarkable that he initially refused to receive medical treatment. 15 (Hammler Tr. 89:2-11.) And once he sought medical attention, medical staff found no 16 evidence of significant injury. (C. Domingo Decl. Ex. 1 at 3 (noting scratches, abrasions, 17 bruising/discoloration, and swelling), 16 (diagram showing injuries); Decl. R. Barenchi 18 ¶¶ 3-8 (examining physician noting no significant injuries, noting Hammler was laughing 19 and smiling during the examination, and concluding injuries were not serious); Decl. D. 20 Clayton ¶¶ 3-9.) Accordingly, this factor favors Aviles. 21 The foregoing notwithstanding, the Court acknowledges that the Supreme Court has 22 held that in the excessive force context, “[w]hen prison officials maliciously and 23 sadistically use force to cause harm, contemporary standards of decency always are 24 violated. This is true whether or not significant injury is evident. Otherwise, the Eighth 25 Amendment would permit any physical punishment, no matter how diabolic or inhuman, 26 inflicting less than some arbitrary quantity of injury. Such a result would have been as 27 unacceptable to the drafters of the Eighth Amendment as it is today.” Hudson v. McMillian, 28 503 U.S. 1, 9 (1992). In Hudson, the Court held the appellate court’s finding that Hudson’s 1 claims were “untenable” due to the minor injuries he sustained was incorrect in light of the 2 Court’s finding that “the blows directed at Hudson . . . [were] not de minimus for Eighth 3 Amendment purposes.” Id. at 9-10. Thus, when significant use of force causes minor 4 injuries, a court cannot rely on the minor nature of the injuries as the sole basis to invalidate 5 an excessive force claim—it is merely one of five factors. However, unlike in Hudson, the 6 force Aviles used was not significant. Thus, both the force Aviles used and Hammler’s 7 injuries were insignificant here. 8 Fourth, the threat Aviles reasonably perceived was significant. During this specific 9 escort, Hammler had lied to Aviles about retrieving paperwork in an attempt to manipulate 10 Aviles and then refused to comply with Aviles’s orders. Hammler also implicitly threated 11 Aviles: Hammler referred to the placards on his door, which Aviles understood as referring 12 to notices relating to his various escort restrictions, implying that Hammler had been in 13 altercations with staff or otherwise been disciplined for being unruly in the past. (Decl. F. 14 Aviles ¶ 4; see also Hammler Tr. at 44:5-18.) In this situation, a reasonable officer would 15 have felt threatened by Hammler’s actions and failure to follow a lawful command. (Decl. 16 S. DeFoe ¶¶ 6-9.) 17 Finally, Aviles made efforts to temper the severity of his use of force. Officers are 18 sometimes required to use force if an inmate refuses a valid order. Whitley, 475 U.S. at 19 320. Here, instead of immediately resorting to force, Aviles tried to talk to Hammler and 20 convince him to follow orders and continue the escort. (Decl. F. Aviles ¶ 2; Hammler Tr. 21 at 65:8-20; Doc. No. 37 ¶¶ 7-9.) Only after Hammler continued to refuse to comply did 22 Aviles perform a takedown maneuver to take Hammler to the ground. Moreover, after the 23 incident, Hammler received medical attention. See Furnace v. Sullivan, 705 F.3d 1021, 24 1030 (9th Cir. 2013) (holding that prison staff providing medical treatment after a use of 25 force tempers the severity of the response). This factor also favors Aviles. 26 Based on the undisputed facts, all five of the relevant factors weigh in favor of 27 finding that Aviles’s takedown of Hammler was not excessive force. As such, there is no 28 genuine dispute of material fact as to the merits of the excessive force claim. Hammler 1 cannot show that the officer applied force maliciously and sadistically to cause harm rather 2 than in a good-faith effort to maintain or restore discipline. See Hudson v. McMillian, 503 3 U.S. 1, 6 (1992). To the contrary, Aviles applied the takedown maneuver in a good-faith 4 effort to maintain order or restore discipline, and it was not done maliciously or sadistically 5 to cause harm. Accordingly, Aviles is entitled to summary judgment on the excessive force 6 claim against him. Moreover, Aviles is also entitled to qualified immunity here. 7 B. Aviles is Also Entitled to Qualified Immunity on Hammler’s Excessive Force 8 Claim. 9 1. Legal Standard 10 Qualified immunity shields government officials from damages liability from § 1983 11 claims unless the official’s conduct violated “clearly established” law of which any 12 reasonable official would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 818 13 (1982). Qualified immunity balances two important interests: “[T]he need to hold public 14 officials accountable when they exercise power irresponsibly and the need to shield 15 officials from harassment, distraction, and liability when they perform their duties 16 reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity is 17 intended to protect “all but the plainly incompetent or those who knowingly violate the 18 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 19 Once the defendant raises the qualified immunity defense, the burden shifts to the 20 plaintiff to show that (1) the alleged misconduct violated a federal statutory or 21 constitutional right; and (ii) the right was “clearly established” when the conduct occurred. 22 Saucier v. Katz, 533 U.S. 194, 201-02 (2001). 23 A court analyzes the first prong—i.e., whether a federal right was violated—under 24 the traditional summary judgment standard. The plaintiff meets his burden if, taking the 25 facts in the light most favorable to plaintiff, a reasonable jury could return a verdict in his 26 favor. See Brownlee v. Murphy, 231 F. App’x 642, 644 (9th Cir. 2007); K.J.P. v. Cty. of 27 San Diego, No. 15CV2692-H-MDD, 2019 WL 1586739, at *7 (S.D. Cal. Apr. 12, 2019). 28 1 The second prong—i.e., whether the right was “clearly established”—involves 2 examining the circumstances that the official faced and the state of the law when the official 3 engaged in the alleged misconduct. For a right to be clearly established, the law must be so 4 clear that, under the particular circumstances of the case, “every ‘reasonable official would 5 understand that what he is doing’ is unlawful.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 6 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The law must be so 7 clear that the challenged conduct’s unconstitutionality is “beyond debate.” al-Kidd, 563 8 U.S. at 741. 9 Here, qualified immunity bars Hammler’s excessive-force claim because the claim 10 does not meet either prong of the Saucier two-step analysis. First, as explained above, there 11 is no genuine dispute of material fact that Aviles violated Hammler’s Eighth Amendment 12 rights. And, under the circumstances, Aviles’s takedown did not violate a clearly 13 established right. 14 2. The Law Was Not Clearly Established in November 2016. 15 As explained above, no genuine dispute of material fact exists whether the force 16 Aviles used was excessive. Aviles is entitled to summary judgment on that basis alone. As 17 a result, Aviles is additionally entitled to qualified immunity because Hammler cannot 18 satisfy the first Saucier prong. However, only for the sake of argument, even if there were 19 a genuine factual dispute as to whether the force Aviles used was excessive, qualified 20 immunity would still apply because Aviles’s takedown did not violate clearly established 21 law. 22 A federal right is “clearly established” when, at the time of the conduct in question, 23 the law was “sufficiently clear that every reasonable official would understand” that what 24 he or she was doing was unlawful. Wesby, 138 S. Ct. at 589 (citations and quotations 25 omitted). It is not enough that the right is merely suggested by existing precedent; for a 26 right to be clearly established, the law must be settled and the constitutionality of the 27 conduct must be beyond debate. Id.; see Hunter, 502 U.S. at 228; Reese v. Cty. of 28 Sacramento, 888 F.3d 1030, 1038 (9th Cir. 2018) (quoting al-Kidd, 563 U.S. at 741). 1 Existing precedent needs to be so clear that it would put any reasonable official on notice 2 that the particular conduct in question, under the same circumstances facing the defendant, 3 would be a constitutional violation. See Wesby, 138 S. Ct. at 589-90; Hamby, 821 F.3d at 4 1091. 5 As of November 2016, the takedown that Aviles performed did not violate a clearly 6 established right. In only two published cases has the Ninth Circuit found that a “tackle” 7 or other takedown has violated the constitution: Blankenhorn v. City of Orange, 485 F.3d 8 463, 478-79 (9th Cir. 2007), and Santos v. Gates, 287 F.3d 846, 853-54 (9th Cir. 2002). 9 See Saetrum v. Vogt, 673 F. App’x 688 (9th Cir. Dec. 16, 2016). Given this paucity of 10 binding precedent, the appropriate analysis involves comparing the facts of a given case 11 with the facts of Blankenhorn and Santos. See Gomez v. City of Vacaville, 483 F. Supp. 3d 12 850, 867-68 (E.D. Cal. Sept. 2, 2020) (“To deny qualified immunity, the degree of force 13 used here must be the same as or higher than the degree of force used in Blankenhorn, 14 Santos or some other controlling authority, and the degree of justification for force must 15 be the same or weaker.”) If officers in a given case used force that was greater than or equal 16 to that applied in Blankenhorn or Santos, and if the officers had the same or less 17 justification for using that force, then they are not immune. See id. But if the force used 18 was less than in those cases, or the officers’ justification was greater, then the cases would 19 not put the government official on notice that their acts might violate the constitution, and 20 qualified immunity applies. See id. 21 This case is readily distinguishable from both Blankenhorn and Santos. It differs 22 from Blankenhorn because the force used by Aviles was objectively far less severe than 23 was applied in that case. In Blankenhorn, a “gang tackle” was used in which three officers 24 pushed Blankenhorn to the pavement in the process of a making an arrest for the alleged 25 crime of misdemeanor trespass. Blankenhorn, 485 F.3d at 478. In addition to tackling 26 Blankenhorn to the ground, one or more officers punched him several times and shoved a 27 knee into the back of his neck. Id. While some force may be justified to make a 28 misdemeanor trespass arrest, proportionality dictates that the use of force in such a setting 1 should be minimal. Thus, in the prison setting (as opposed to a misdemeanor trespass), 2 Blankenhorn would not have informed an official in Aviles’s position that a simple one- 3 man takedown that did not include any other force, and which resulted in little or no injury 4 to the inmate, would be unlawful. 5 This case is also easily distinguished from Santos. In Santos, the takedown was so 6 severe it broke the suspect’s back. Santos, 287 F.3d at 853-54. The Ninth Circuit found 7 that, viewing the evidence in plaintiff’s favor, a reasonable jury could find the officer used 8 excessive force primarily because (1) the crime at issue was a minor offense (public 9 intoxication); (2) the suspect did not pose a threat; and (3) the suspect was not actively 10 resisting arrest. Id. at 854. The court also noted that the force used was “quite severe,” as 11 evidenced by plaintiff’s injuries. Id. at 853-54. In this case, by contrast, Hammler admitted 12 resisting his escort, admitted to making statements a reasonable officer might interpret as 13 threats, and suffered no serious injuries. (Doc. No. 37 ¶¶ 7-9; Hammler Tr. 65:8-20; Decl. 14 S. Defoe ¶¶ 6-9; Decl. R. Barenchi ¶¶ 3-8; Decl. D. Clayton ¶¶ 3-9; C. Domingo Decl. Exs. 15 1, 2, 5-7.) The force Aviles used was also far less severe than in Santos as evidenced by 16 the minimal injuries to Hammler. Therefore, Santos likewise would not have notified a 17 reasonable officer that the takedown in this case would have violated the Eighth 18 Amendment. 19 Because there is no genuine issue of material fact as to either prong of the qualified 20 immunity analysis, the Court should also find that qualified immunity bars Hammler’s 21 excessive force claim. 22 B. No Genuine Issue of Material Fact Exists as to the Retaliation Claim.3 23 There is also no genuine issue of material fact as to Hammler’s retaliation claim. To 24 prevail on a retaliation claim, Hammler must prove five elements: (1) the defendant took 25

26 27 3 Hammler’s opposition does not in any way address Aviles’s arguments on the retaliation claim. As a result, the Court may treat this claim abandoned or the issue conceded. Justice 28 1 adverse action against the plaintiff (2) because of (3) the plaintiff’s engaging in some First 2 Amendment-protected activity, (4) the adverse action would chill or silence a person of 3 ordinary firmness from engaging in future First Amendment activities, and (5) the adverse 4 action did not advance a legitimate penological goal. See Watison v. Carter, 668 F.3d 1108, 5 1114-15 (9th Cir. 2012). Aviles does not dispute that issuing an RVR may constitute 6 adverse action or that complaining of excessive force is an act protected by the First 7 Amendment. But Hammler cannot establish any of the other necessary elements of his 8 retaliation claim. 9 First, Aviles issued the RVR before Hammler submitted his CDCR Form 602 10 complaining about Aviles’s use of force. Moreover, there is no competent evidence that 11 Aviles issued the RVR to Hammler in retaliation for any First Amendment activity. Rather, 12 the only competent evidence is that Aviles issued the RVR because Hammler resisted him 13 during an escort and implicitly threatened him. (Decl. F. Aviles ¶¶ 9-11 & Ex. 2; Decl. S. 14 DeFoe ¶¶ 6-9.) Thus, Hammler cannot prove Aviles issued the RVR “because” Hammler’s 15 allegations against Aviles. 16 Second, Hammler cannot show that receiving an RVR for conduct he admits he 17 engaged in would chill a person of ordinary firmness from exercising his First Amendment 18 19

20 21 365 (9th Cir. 2017) (“[I]f a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”) (citation and internal 22 quotations and brackets omitted); Bishop v. Harris, No. EDCV19-1607-PSG(SPx), 2021 23 U.S. Dist. LEXIS 209733, at *27 (C.D. Cal. June 23, 2021) (same); see also Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (upholding finding that the non- 24 moving party abandoned claims by not raising them in opposition to a motion for summary 25 judgment); Marentes v. State Farm Mut. Auto. Ins. Co., 224 F. Supp. 3d 891, 919 (N.D. Cal. 2016) (“When a non-moving party opposes summary judgment with respect to some 26 claims, but not others, a court may, when appropriate, infer from a party’s partial 27 opposition that relevant claims or defenses that are not defended have been abandoned.”) (internal quotation omitted). Accordingly, Aviles’s MSJ on the retaliation claim may be 28 1 rights in the future. Indeed, receiving the RVR certainly did not chill Hammler from filing 2 this action or from filing over a dozen other actions since he received the RVR.4 3 Finally, the adverse action in this case advanced a clear penological purpose. The 4 RVR accused Hammler of willfully resisting an officer in the performance of his duties, 5 which is precisely what Hammler did. (Decl. F. Aviles ¶ 9 & Ex. 2.) As Hammler admits, 6 he in fact resisted Aviles’s escort. (Hammler Tr. at 65:8-20.) And Hammler was found 7 guilty of the rule violation. (Decl. J. Guirbino Ex. 2 at 11.) As a result, the issuance of the 8 RVR advanced the legitimate goal of promoting compliance with prison rules—by the 9 prison population more broadly and by Hammler in particular—by demonstrating that the 10 prison’s rules will be enforced. It also furthers penological goals of maintaining the safety 11 and security of institutions, the inmates, and the prison staff. Those are indisputably 12 legitimate penological goals, and the prison’s ability to enforce its rules is critical to 13 accomplishing these goals. See Hunt v. Ramirez, No. 11CV528-H(PCL), 2013 WL 14 12049069, at *4 (S.D. Cal. Oct. 18, 2013) (granting summary judgment in retaliation claim 15 based on RVR for violating “regulation that requires inmates to follow direct orders” 16 because it “serves the legitimate penological goal of maintaining the safety and security of 17 the institution, the inmates, and the staff”), aff’d, 592 F. App’x 576 (9th Cir. 2015). 18 19 20 4 See, e.g., Hammler v. Diaz, et al., No. 2021-00301267-CV (Sacramento Cty. Super. Ct. 21 May 25, 2021); Hammler v. Zydus Pharmacy, et al., No. 21CV343 (E.D. Cal. Mar. 4, 2021); Hammler v. Allison, et al., No. 21CV122 (E.D. Cal, Jan. 29, 2021); Hammler v. 22 Imada, et al., No. 21CV149 (S.D. Cal. Jan. 27, 2021); Hammler v. Bialik, et al., 23 No. 21CV2065 (C.D. Cal. Jan. 20, 2021); Hammler v. Dignity Health, et al., No. 20CV1778 (E.D. Cal. Dec. 17, 2020); Hammler v. Diaz, et al., No. 20CV1890 (E.D. Cal. 24 Sept. 21, 2020); Hammler v. Cal., et al., No. 20CV630 (E.D. Cal. May 5, 2020); Hammler 25 v. Cal., et al., No. 20CV884 (E.D. Cal, Apr. 30, 2020); Hammler v. Diaz, et al., No. 20CV488 (E.D. Cal. Apr. 6, 2020); Hammler v. Burns, et al., No. 20CV489 (E.D. Cal. Apr. 26 6, 2020); Hammler v. Cal., et al., No. 19CV1212 (E.D. Cal. Aug. 30, 2019); Hammler v. 27 Compose, et al., No. 19CV1149 (E.D. Cal. Aug. 23, 2019); Hammler v. Diaz, et al., No. 19CV1141 (E.D. Cal. Aug. 20, 2019); Hammler v. Cal., et al., No. 19CV1057 (E.D. Cal. 28 1 Because Hammler will not be able to establish the required elements of a retaliation 2 ||claim, Aviles is entitled to summary judgment on this claim. 3 IV. CONCLUSION 4 The Court RECOMMENDS that Defendant Aviles’s MSJ be GRANTED and 5 judgment be entered in his favor. 6 This Report and Recommendation is submitted to the United States District Judge 7 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule 8 || of Civil Procedure 72(b). 9 IT IS ORDERED that no later than December 30, 2021, any party to this action 10 || may file written objections with the Court and serve a copy on all parties. The document 11 be captioned “Objections to Report and Recommendation.” 12 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 13 ||Court and served on all parties no later than January 18, 2022. The parties are advised 14 || that failure to file objections within the specified time may waive the right to raise those 15 || objections on appeal of the Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 IT IS SO ORDERED. 17 ||} DATED: November 22, 2021 NS 19 Hon. William V. Gallo 20 United States Magistrate Judge 21 22 23 24 25 26 27 28