The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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JACOB SILVERMAN,
11 Case No. 17-01146 BLF (PR)
Plaintiff,
3 12 ORDER GRANTING MOTION FOR
Vv. SUMMARY JUDGMENT;
13 GRANTING MOTION TO
SUBSTITUTE NAME OF
Y 14 MENDIBURJU, et al., DEFENDANT; DENYING OTHER
3 MOTION
15 Defendants.
16 (Docket Nos. 21, 41 & 46)
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Z 18 Plaintiff, a California inmate, filed a pro se civil rights complaint under 42 U.S.C. §
19 || 1983, against jail officials at Humboldt County Correctional Facility (““HCCF”).' The
20 || Court found the complaint stated a cognizable excessive force claim under the Eighth
21 || Amendment and ordered Defendants Deputy Hudson, Corporal Mendiburu, Deputy
22 || Twitchell (Sr.), and Sgt. Griffin to file a motion for summary judgment or other dispositive
23 || motion. (Docket No. 10.) Defendants filed a motion for summary judgment asserting that
24 || the use of force was reasonable as matter of law and they are entitled to qualified
25 |} immunity. (Docket No. 21, hereafter “Mot.”) Plaintiff filed an opposition, (Docket No.
27 1 This matter was reassigned to this Court on September 22, 2017. (See Docket Nos. 15,
17.)
28
1 || 28), and Defendants filed a reply, (Docket No. 34).
2 Plaintiff also filed a motion to substitute the name of Defendant Sgt. Griffin with
3 || Corporal T. Arnold, who is the proper Defendant in this action. (Docket No. 41.)
|| Defendants oppose the motion, asserting that granting the motion would cause delay,
5 |} require further briefing, and would be futile. (Docket No. 42.) The Court is not persuaded
6 || that granting the motion would cause further delay as Defendants’ motion for summary
7 || judgment can be decided notwithstanding the fact that newly identified Defendant Armold
8 || has not yet been served in this matter. Accordingly, good cause appearing, the motion is
9 || GRANTED. Accordingly, Defendant Sgt. Griffin is DISMISSED from this action as he
10 || was improperly named and there are no claims against him. Defendant T. Arnold shall be
11 || substituted as the proper defendant in his place.
3 12 For the reasons discussed below, Defendants’ summary judgment motion is
13 || GRANTED.
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B 15 DISCUSSION
A 16 I. Statement of Facts°
5 17 On December 22, 2016, Defendant Corporal M. Mendiburu was working as a
% 1g || uniformed Senior Correctional Deputy at HCCF, assigned as the third floor
19 || rover/supervisor. (Mendiburu Decl., Ex. A.)
20 At approximately 1120 hours, Defendant Correctional Deputy J. Hudson called
21
22 || 2 plaintiff thereafter filed another “reply” to Defendants’ reply. (Docket No. 39.) In the
3 || order of service, the Court stated that any dispositive motion filed by Defendants would be
deemed submitted as of the date the reply brief is due. (Docket No. 10 at 4.) Nor did
54 || Plaintiff obtain court approval prior to filing the additional papers as required under Local
Rule 7-3(d). Because he did not obtain Court approval before filing additional papers as
45 || tequired under the Local Rule 7-3(d), the Court will not consider this additional briefing.
6 ? The following facts are undisputed unless otherwise indicated. These facts are taken
from the declarations submitted in support of Defendants’ summary judgment motion,
17 (Docket Nos. 21-1, 21-2, 21-3, 21-4), as Plaintiff did not submit any declaration, affidavit
or other competent evidence in his opposition to summary judgment to dispute these facts.
1 || Defendant Mendiburu and informed him that Plaintiff, housed in N334, was continuously
2 || making rude statements to her. (Mendiburu Decl., Ex. A; Hudson Decl., Ex. A.) These
3 || statements included: “you are noise pollution and unprofessional,” and “you belong in a
4 || women’s facility.” (Hudson Decl., Ex. A.) Plaintiff had made similar comments to
5 || Defendant Hudson throughout the week. (/d.) Defendant Hudson requested that Plaintiff
6 || be removed from the housing dorm for disrespect. Defendant Mendiburu told Defendant
7 || Hudson that after feeding was complete, he would assist in removing Plaintiff from cell
8 || N334 to a holding cell on the first floor processing/booking area of the facility. Ud.;
9 || Mendiburu Decl., Ex. A.)
10 At approximately 1130 hours, Defendants Mendiburu, Hudson, and Deputy L.
11 || Twitchell, approached Plaintiffs cell to move him downstairs to the holding cell.
g 12 (Mendiburu Decl., Ex. A; Hudson Decl., Ex. A; Twitchell Decl., Ex. A.) When Defendant
13 || Hudson approached the cell, she saw Plaintiff sitting at his desk writing. (Hudson Decl.,
S 14 || Ex. A.) Defendant Hudson opened the cell and instructed Plaintiff to exit the cell. □□□□
3 15 || Plaintiff ignored her order. (/d.) Defendant Mendiburu instructed cellmate Gower to exit
2 16 || the cell. Ud.) Defendant Twitchell escorted Gower to the multipurpose room. (/d.;
5 17. || Twitchell Decl., Ex. A.) Defendants Hudson and Mendiburu entered Plaintiff's cell. Wd.)
5 18 || Plaintiff stood up and picked up a folder of papers and said, “I’m going to need my legal
19 || paperwork.” (/d.) Defendant Mendiburu told Plaintiff he was not taking his paperwork,
20 || and Plaintiff set it on the bed. Ud.) Defendant Mendiburu then told Plaintiff to turn
21 || around and place his hands behind his back. (/d.) Plaintiff ignored the order. (/d.) When
22 || Defendant Mendiburu took control of Plaintiff's right arm and turned him around, Plaintiff
23 || began to resist. id.) Defendant Mendiburu gave Plaintiff verbal commands to stop
24 || resisting, which he ignored. Ud.) Defendant Mendiburu applied pressure to the control
25 || hold and pushed Plaintiff up against the bunk, until he stopped resisting. Ud; Hudson
26 || Decl., Ex. A.) Defendant Hudson then placed Plaintiff in handcuffs. Ud.) By this time,
27 || Defendant Twitchell had returned and observed Plaintiff physically resisting while in
1 || handcuffs. (Twitchell Decl., Ex. A.)
2 Defendants Mendiburu and Twitchell then escorted Plaintiff down the hallway, and
3. || Defendant Hudson followed. (Hudson Decl., Ex. A; Benge Decl., Ex. A at Cam 1, 11:20,
4 || □□□ □ 11:20.) As Defendants Mendiburu and Twitchell began escorting Plaintiff, he
5 || again began to resist, and Defendant Mendiburu decided to escort Plaintiff walking
6 || backwards so they would be at a position of advantage. (Mendiburu Decl., Ex. A; Video,
7 || Cam 1, 11:20, Cam 3, 11:20.) Defendant Mendiburu controlled Plaintiff's left side while
g || Defendant Twitchell controlled his right side. U/d.) As they were walking, Plaintiff was
9 || yelling, “Oh you think you are tough, you want to break my wrist go ahead tough guy
10 || break my wrist.” Cd.) As Plaintiff was making these statements, he applied pressure to
11 || Defendant Mendiburu’s control hold. (Mendiburu Decl., Ex. A.) When they entered the
a 12 || elevator, Plaintiff attempted to turn towards Defendants Mendiburu who, along with
13 || Defendant Twitchell, placed Plaintiff against the wall to gain control. Ud.; Twitchell
14 || Decl., Ex. A; Video, Cam 9, 11:21.) Defendant Mendiburu removed Plaintiff's glasses
o
3 15 || and handed them to Defendant Hudson to prevent possible damage. (/d.; Hudson Decl.,
A 16 || Ex. A.)
5 17 When they arrived to the processing level, Plaintiff was escorted out of the elevator
18 || and toward the holding cell. (Video, Cam 22, 11:22.) Correctional Sgt. Arnold assisted
19 || Defendants Mendiburu and Twitchell by controlling Plaintiff's head. (/d.; Mendiburu
20 || Decl., Ex. A; Twitchell Decl., Ex. A.) Defendant Mendiburu gave Plaintiff a verbal
21
22 4 Exhibit A to the Benge Declaration is a USB drive which includes video footage from
3 various cameras, hereinafter referred to as “Video, Cam” followed by a number, e.g.,
“Video, Cam 1.” Officer Jason Benge is the Compliance Officer for HCCF, who attests
54 || that the USB drive contains all available video footage recorded by all cameras concerning
the December 22, 2016, incident. (Benge Decl. § 2, Ex. A.) Plaintiff asserts in his motion
45 || to enforce a subpoena to obtain “unedited video information” that the evidence was
“edited, tampered with, spliced and doctored... by whomever handled and forwarded the
46 || version.” (Docket No. 46.) However, Plaintiff fails to explain what further information a
“pristine” video would show that would be helpful to this case. (/d.) Accordingly, the
47 || motion for a subpoena is DENIED.
1 || command to get on his knees once they arrived at the holding cell. (Mendiburu Decl., Ex.
2 || A.) Plaintiff got on his knees but would not get on his stomach. (/d.) Plaintiff was then
3 || placed on his stomach. (/d.) Sgt. Arnold maintained control of Plaintiff's head as he was
4 || trying to face Defendant Mendiburu and lift up. Ud.) Defendant Twitchell maintained
5 |} control of one arm and Defendant Mendiburu controlled the other. Ud.) Once Plaintiff
6 || was on the floor, Defendant Hudson removed Plaintiff's handcuffs. Ud.) Defendant
7 || Mendiburu instructed the staff to exit the cell safely. Ud.) Defendant Mendiburu removed
g || his department issued Taser X26, turned it on, pointed the taser at Plaintiff's back, and
9 || warned him that if he stood up he would be tased. (/d.) All deputies exited the cell safely
10 || without further incident. (/d.)
11 Based on Plaintiff's allegations from this incident, the Court found he stated a
g «(212 cognizable claim of excessive force against Defendants Hudson, Mendiburu, Twitchell,
E 13 || and Arnold (originally identified as “Griffin” in the complaint). (Docket No. 10 at 2.)
S 14 || I. Summary Judgment
3 15 Summary judgment is proper where the pleadings, discovery and affidavits show
2 16 || that there is “no genuine dispute as to any material fact and the movant is entitled to
5 17 || judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment
5 18 || “against a party who fails to make a showing sufficient to establish the existence of an
19 || element essential to that party’s case, and on which that party will bear the burden of proof
20 || attrial... since a complete failure of proof concerning an essential element of the
21 || nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.
22 || Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of
23 || the lawsuit under governing law, and a dispute about such a material fact is genuine “‘if the
24 || evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
25 || Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
26 Generally, the moving party bears the initial burden of identifying those portions of
27 || the record which demonstrate the absence of a genuine issue of material fact. See Celotex
1 || Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue
2 || at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other
3 |} than for the moving party. But on an issue for which the opposing party will have the
4 || burden of proof at trial, the moving party need only point out “that there is an absence of
5 || evidence to support the nonmoving party’s case.” Jd. at 325. If the evidence in opposition
6 || to the motion is merely colorable, or is not significantly probative, summary judgment may
7 || be granted. See Liberty Lobby, 477 U.S. at 249-50.
8 The burden then shifts to the nonmoving party to “go beyond the pleadings and by
9 || her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
10 || file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex
11. || Corp., 477 U.S. at 324 (citations omitted). “This burden is not a light one. The non-
12 moving party must show more than the mere existence of a scintilla of evidence.” In re
13. || Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Liberty
S 14 || Lobby, 477 U.S. at 252). “The non-moving party must do more than show there is some
3 15 || ‘metaphysical doubt’ as to the material facts at issue.” Jd. (citing Matsushita Elec. Indus.
16 || Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In fact, the non-moving party
i 17 || must come forth with evidence from which a jury could reasonably render a verdict in the
18 non-moving party’s favor.” Jd. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving
19 || party fails to make this showing, “the moving party is entitled to judgment as a matter of
20 || law.” Celotex Corp., 477 U.S. at 323.
21 The Court’s function on a summary judgment motion is not to make credibility
22 || determinations or weigh conflicting evidence with respect to a material fact. See T. W.
23 || Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
24 || The evidence must be viewed in the light most favorable to the nonmoving party, and the
25 || inferences to be drawn from the facts must be viewed in a light most favorable to the
26 || nonmoving party. See id. at 631. It is not the task of the district court to scour the record
27 || in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.
1 1996). The nonmoving party has the burden of identifying with reasonable particularity
2 || the evidence that precludes summary judgment. Jd. If the nonmoving party fails to do so,
3 || the district court may properly grant summary judgment in favor of the moving party. See
4 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29
5 |} (9th Cir. 2001).
6 A. Excessive Force
7 A prisoner has the right to be free from cruel and unusual punishment, including
g || physical abuse by guards. Whenever prison officials stand accused of using excessive
9 || physical force in violation of the Eighth Amendment, the core judicial determination is
10 || whether force was applied in a good-faith effort to maintain or restore discipline, or was
11. || applied maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6
gq 12 (1992) (citing Whitley v. Albers, 475 U.S. 312, 317 (1986)). In making this determination,
E 13 || a court may evaluate the need for application of force; the relationship between that need
S 14 || and the amount of force used; the extent of any injury inflicted; the threat reasonably
3 15 || perceived by the responsible officials; and any efforts made to temper the severity of a
2 16 || forceful response. See Hudson, 503 U.S. at 7; see also Spain v. Procunier, 600 F.2d 189,
5 17 195 (9th Cir. 1979) (guards may use force only in proportion to need in each situation).
5 18 The evidence presented does not show a genuine dispute as to any material fact
19 | relating to Plaintiff's claim of excessive force against Defendants. Plaintiff alleges in the
20 || complaint that Defendants used excessive force even though he was not resisting, and that
21 || at times he received no commands prior to their use of force. (Compl., Attach. at 5.°) In
22 ||. response, Defendants have submitted declarations which refer to their reports from the
23 || December 22, 2016 incident, reports that were prepared within hours of the incident.
24 || (Docket Nos. 21-1, 21-3, 21-4.) The three reports prepared by Defendants Mendiburu,
25 || Twitchell, and Hudson are consistent with each other, and state that Plaintiff resisted
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7 ° In the “statement of claim” section of the complaint, Plaintiff states that the “facts are
listed in this grievance” which are attached to the complaint. (Compl. at 3.)
1 || throughout the incident, from the time he ignored orders to place his hands behind his back
2 || in his cell, while being escorted to the elevator and therein, until he arrived at the holding
3 |} cell and refused to lie on his stomach. (/d.) Only after Plaintiff failed to comply with their
4 || orders did Defendants act to gain control of Plaintiff, e.g., by applying pressure to the
5 || control hold and pushing Plaintiff against the bunk until he complied to being handcuffed,
6 || keeping control of Plaintiff's arms as they walked to and from the elevator, making him
7 || walk backwards to maintain an advantage, and by controlling his head until he was placed
8 || in the holding cell. See supra at 3-4.
9 Furthermore, the Court has viewed the video footage from cameras in the hallway
10 || showing Plaintiff being escorted from his cell to the elevator, in the elevator, and the
11 || hallway to the holding cell. (Benge Decl., Video, Cam 1, 11:20; Cam 9, 11:21, Cam 22,
q 12 11:22.) The Court notes first of all, that Plaintiff is a much larger man than Defendants
E 13. || Mendiburu, Twitchell, or Hudson. Ud.) Secondly, these videos do not show Defendants
S 14 || using excessive force against Plaintiff in any of these locations. Rather, they show two
3 15 || deputies, presumably Defendant Mendiburu and Twitchell, holding a rather larger inmate
16 || firmly by his handcuffed arms as he walked backwards into an elevator; once in the
5 17. || elevator, they pushed him without much force into a corner and firmly held him there until
5 18 || they reached the designated floor at which they time they maintained their firm hold on
19 || him and maneuvered him walking backwards out of the elevator; in the hallway, they
20 continued their firm hold of Plaintiff while additional deputies escorted them to the
21 || holding cell down a hall that is less visible. (/d.) Furthermore, the deputies’ reports of this
22 || incident are consistent with what appears in these videos. Based on this evidence,
23 || Defendants have shown that there is no genuine issue of material fact as to whether any of
24 || the Defendants applied force in a good-faith effort to maintain control or maliciously and
25 || sadistically to cause harm. Hudson, 503 U.S. at 6.
26 Defendants also assert that Plaintiff has failed to satisfy the “physical injury
27 || requirement” because Plaintiff does not allege that he was diagnosed with any condition
1 || indicating that he sustained any physical injury as a result of this incident. (Mot. at 6.)
2 || Plaintiff claims in his complaint that his “wrist is injured and neck a bit.” (Compl. at 3.)
3 || For the first time in his opposition, Plaintiff asserts that he has not received effective pain
4 || treatment, that he has been diagnosed with “nerve damage,” and that he believes there are
5 || “undiagnosed injuries that he cannot articulate in his hand/wrist to elbow area which this
6 || facility refuses to refer remedy for.” (Opp. at 16.) In reply, Defendants assert that
7 || Plaintiffs assertions are only “conclusions and speculation” with respect to whether his
g || alleged injuries are linked to the incident in question. (Reply at 1.) The Court concludes
9 || that Defendants argument based on the lack of injury is not persuasive. To conclude that
10 || the absence of some arbitrary quantity of injury requires automatic dismissal of an
11 || excessive force claim improperly bypasses Hudson’s core inquiry of whether force was
12 applied maliciously and sadistically to cause harm. Wilkins v. Gaddy, 559 U.S. 34, 39
13 || (2010); accord Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (clarifying that in
5 14 || embracing physical injury standard under 42 U.S.C. § 1997e(e) adopted by several circuits,
3 15 || Ninth Circuit does not subscribe to reasoning of other circuits that 8th Amendment claims
16 || require that “the injury must be more than de minimis’; standard used for 8th Amendment
5 17 || excessive force claims only examines whether the use of physical force is more than de
5 18 || minimis). .
19 Nevertheless, the extent of injury suffered by an inmate is just one factor that may
20 || suggest whether the use of force could possibly have been thought necessary in a particular
21 || situation. Hudson, 503 U.S. at 7. Based on the evidence submitted, the other Hudson
22 || factors indicate that Defendants applied force in a good-faith effort to maintain or restore
23 || discipline: the need and the amount of force used was reasonable as Plaintiff was resisting
24 || throughout the incident; Defendants reasonably perceived that Plaintiff, in resisting, posed
25 || threat to them since he was a much larger man than any of them; and Defendants only
26 || used force necessary to control Plaintiff, even walking him backwards to maintain an
27 || advantage rather than use more aggressive tactics, and stopped applying force once
1 Plaintiff was in the holding cell. Jd. The evidence also shows that Defendants were
2 || concerned with the safety of deputies as Defendant Mendiburu took further precautions by
3 || warning Plaintiff that a taser would be used if he did not comply with the order to remain
4 || down until all deputies had exited the cell. /d. at 5. Accordingly, Defendants have met
5 || their initial burden of demonstrating the absence of a genuine issue of material fact with
6 || respect to the excessive force claim against them. See Celotex Corp., 477 U'S. at 323.
7 The burden then shifts to Plaintiff to designate specific facts showing that there is a
g || genuine issue for trial. /d. at 324. He must do so by going “beyond the pleadings and by
9 || [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admission on
10 || file.” Jd. Plaintiff has failed to meet this burden as he has submitted no affidavit or other
11 evidence to indicate that material facts are in dispute. Rather, Plaintiff generally asserts
3 12 || that Defendants’ facts are “fakes and fabrications,” and repeats his claims from the
E 13. |} complaint. (Op. at 2-3, 9-14.) Plaintiff provides no evidence other than his own
S 14 || assertions, which are not presented in a proper affidavit, that Defendants used excessive
3 15 force during the incident at issue. Plaintiff also asserts that during a previous incident he
2 16 || did not resist and therefore, he did not do so on December 22, 2016, but this is clearly
5 17 || conclusory. (Ud. at 5.) He also submits copies of various grievances in an attempt to show
5 18 || pattern of behavior by Defendants against him, but which have no direct relevance to the
19 || incident at issue. (Opp., Exs.) Plaintiff also submits copies of “medical request forms” to
20 || prove his injuries. (Opp., Ex. 29.) However, as discussed above, the extent of injury is
21 || merely one of several factors considered to determine whether Defendants used excessive
22 || force in violation of the Eighth Amendment, and all the other facts indicate that
23 || Defendants use a reasonable amount of force. See supra at 9. Lastly, Plaintiff submits a
24 || declaration of another prisoner stating that Defendant Mendiburu “assaulted” him even
25 || after he complied with instructions to “cuff up.” (Opp., Ex. 31.) The appropriateness of
26 || Defendant Mendiburu’s behavior with respect to that inmate is irrelevant to the question of
27 || whether on December 22, 2016, Defendant Mendiburu used appropriate force on Plaintiff
1 || in consideration of the Hudson factors. Accordingly, it cannot be said that Plaintiff has
2 || come forth with evidence from which a jury could reasonably render a verdict in Plaintiff's
3 || favor. See In re Oracle Corporation Securities Litigation, 627 F.3d at 387.
4 Based on the evidence presented, Defendants have shown that there is no genuine
5 || issue of material fact with respect to Plaintiff's excessive force claim. See Celotex Corp.,
6 || 477 US. at 323. In opposition, Plaintiff has failed to point to specific facts showing that
7 || there isa genuine issue for trial, id. at 324, or identify with reasonable particularity the
g || evidence that precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly,
9 || Defendants are entitled to judgment as a matter of law. Id.; Celotex Corp., 477 U.S. at
10 |} 323.
11 B. Unserved Defendant Arnold
2 Defendant Arnold has not been served in this action since he has just recently been
13. || identified as the proper defendant and substituted for Defendant Griffin. See supra at 2.
S 14 || The only claim against him is the same excessive force claim against the other Defendants
3 15 || in this action.
2 16 Summary judgment may be granted by the court sua sponte in favor of a
i 17. || nonappearing party on the basis of facts presented by other defendants who have appeared.
18 || See Columbia Steel Fabricators v. Ahlstrom Recovery, 44 F.3d 800, 802-03 (9th Cir.)
19 || (affirming grant of summary judgment in favor of nonappearing defendant where plaintiff,
20 || in response to summary judgment motion filed by defendant who had appeared, had “full
21 || and fair opportunity to brief and present evidence” on dispositive issue as to claim against
22, || nonappearing defendant), cert. denied, 516 U.S. 864 (1995); see also Abagninin v. AMVAC
23 || Chemical Corp., 545 F.3d 733, 742 (9th Cir. 2008) (holding district court properly granted
24 || motion for judgment on the pleadings as to unserved defendants where such defendants
25 || were in a position similar to served defendants against whom claim for relief could not be
26 || stated); Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding
27 || district court on its own motion may grant motion to dismiss as to defendants who have not
1 || moved to dismiss where such defendants are in a position similar to that of moving
2 || defendants).
3 Here, Defendant Arnold is in a position similar to served Defendants who have
4 || shown that they are entitled to summary judgment based on the absence of a genuine issue
5 || of material fact with respect to the excessive force claim against them. See supra at 8-10.
6 || The declarations submitted by Defendants who have appeared in this action sufficiently
7 || describe Defendant Arnold’s involvement in this incident: Defendant Arnold provided
g || assistance to Defendants Mendiburu and Twitchell by controlling Plaintiff's head after
9 || they exited the elevator, and later in the holding cell, Defendant Arnold maintained control
10 || of Plaintiffs head as he was trying to face Defendant Mendiburu and lift up. Jd. at 4-5.
11 || Plaintiff has failed to submit, in opposition, any evidence to indicate that material facts are
a in dispute with respect to any Defendants’ actions, including that of Defendant Arnold.
13. || Defendants’ declarations indicate that Plaintiff was resisting throughout his escort to the
5 14 || holding cell, which necessitated Defendant Arnold providing additional assistance upon
3 15 || their exit from the elevator and inside the holding cell. Jd. Although Plaintiff was
2 16 || mistaken as to Defendant Arnold’s name, Plaintiff's allegations clearly challenge
5 17 || Defendant Arnold’s actions during this incident. He therefore had a “full and fair
5 18 || opportunity to brief and present evidence” on the merits as to excessive force claim against
19 || Defendant Arnold. See Columbia Steel Fabricators v. Ahlstrom Recovery, 44 F.3d at 802-
290 |} 03.
21 Based on the foregoing, the Court sua sponte grants summary judgment in favor of
22 || Defendant Arnold on the basis of facts presented by other Defendants who have appeared,
23 || showing that there is an absence of a genuine issue of material fact with respect to the
24 || excessive force claim against them. See Columbia Steel Fabricators, 44 F.3d at 802-03.
25 ///
26 || //
///
1 CONCLUSION
2 For the reasons stated above, Defendants J. Hudson, Corporal M. Mendiburu, and
3 || Deputy L. Twitchell’s motion for summary judgment, (Docket No. 21), is GRANTED.
4 || The claims against them are DISMISSED with prejudice.
5 Plaintiff's motion to substitute the name of Defendant Sgt. Griffin with Corporal T.
6 || Arnold is GRANTED. (Docket No. 41.) Defendant Sgt. Griffin is DISMISSED from
7 || this action as there are no claims against him.
g Because unserved Defendant Corporal T. Arnold is in a position similar to the
9 || Defendants who have appeared in this action on the claim of excessive force, summary
10 || judgment is also granted in his favor. The claim against him is DISMISSED with
11 || prejudice.
gq Plaintiff's motion for assistance in issuing a subpoena, (Docket No. 46.), is
13 DENIED. See supra at 4, fn. 4.
S 14 This order terminates Docket No. 21, 41, and 46.
3 15 ITISSO ORDERED. fms >
2 16 |) pater: ee, OK MER ne □□
FE /BETH LABSON FREEMAN
United States District Judge
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26 || 6 Because the Court finds that no constitutional violation occurred, it is not necessary to
97 || reach Defendants’ qualified immunity argument.