Herrera

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MILTONOUS Q. KINGDOM, Case No. 2:23-cv-0874-JDP (P)

12 Plaintiff, ORDER; FINDINGS AND

RECOMMENDATIONS

13 v.

14 G. HERRERA,

15 Defendant.

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18 Plaintiff, a state prisoner, brought this action under section 1983 alleging that defendant

19 G. Herrera violated his Eighth Amendment rights by using excessive force against him. ECF No.

20 1 at 3-4. Defendant has moved for summary judgment, ECF No. 39, plaintiff has filed an

21 opposition, ECF No. 44, and defendant has filed a reply, ECF No. 45. After reviewing the

22 pleadings, I find that defendant’s motion should be denied. I will order that the Clerk of Court

23 assign a district judge to his action and submit the recommendations below.

24 One motion, however, must be addressed at the outset. After defendant filed his motion

25 for summary judgment, plaintiff filed a motion to stay ruling on the motion and to reopen

26 discovery. ECF No. 50. Therein, plaintiff argues that he should be permitted to conduct

27 additional discovery because he learned that defendant was involved in a different excessive force

28 incident with another inmate. Id. at 6. In a section 1983 action, however, evidence of prior bad

1 acts is inadmissible “to prove the character of a person in order to show action in conformity

2 therewith.” Fed. R. Evid. 404(b). Such evidence may be admitted for other purposes, such as

3 proof of motive, but plaintiff does not argue that the evidence has such application here. As

4 defendant points out in his opposition to the stay, plaintiff has not sufficiently explained how this

5 other alleged use of force relates to his own allegations. Moreover, I find that the interests of

6 justice do not favor another round of discovery. Discovery ended in July 2024 and has now been

7 closed for more than a year. ECF No. 23. Plaintiff has not shown that he has been diligent in

8 pursuing discovery, either prior to the deadline or in the months afterward. Instead, he waited

9 until after defendant filed a motion for summary judgment to request an extension of that

10 deadline. His motion to stay and reopen discovery is denied.

11 I will also deny plaintiff’s numerous other pending motions, including his “dispositive

12 motion,” ECF No. 38, which I construe as his own motion for summary judgment. That six-page

13 motion provides no evidence or substantive argument and is composed, almost entirely, of case

14 law concerning the standards for pro se litigants and summary judgment. It does not show that

15 there is no genuine dispute of material fact.

16 I turn now to defendant’s motion for summary judgment.

17 Legal Standards

18 Summary judgment is appropriate where there is “no genuine dispute as to any material

19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

20 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

21 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

22 while a fact is material if it “might affect the outcome of the suit under the governing law.”

23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818

24 F.2d 1422, 1436 (9th Cir. 1987).

25 Rule 56 allows a court to grant summary adjudication, also known as partial summary

26 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

27 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

28 56 authorizes a summary adjudication that will often fall short of a final determination, even of a

1 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a

2 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R.

3 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

4 Each party’s position must be supported by (1) citations to particular portions of materials

5 in the record, including but not limited to depositions, documents, declarations, or discovery; or

6 (2) argument showing that the materials cited do not establish the presence or absence of a

7 genuine factual dispute or that the opposing party cannot produce admissible evidence to support

8 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider

9 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R.

10 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir.

11 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

12 “The moving party initially bears the burden of proving the absence of a genuine issue of

13 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

14 moving party must either produce evidence negating an essential element of the nonmoving

15 party’s claim or defense or show that the nonmoving party does not have enough evidence of an

16 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

17 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

18 initial burden, the burden then shifts to the non-moving party “to designate specific facts

19 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

20 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than

21 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

22 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material

23 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to

24 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W.

25 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

26 The court must apply standards consistent with Rule 56 to determine whether the moving

27 party has demonstrated there to be no genuine issue of material fact and that judgment is

28 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

1 “[A] court ruling on a motion for summary judgment may not engage in credibility

2 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

3 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

4 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

5 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

6 198 F.3d 1130, 1134 (9th Cir. 2000).

7 Analysis

8 I. Plaintiff’s Account

9 Plaintiff alleges that on October 28, 2022, he was headed to a facility visiting room at

10 California State Prison-Solano. ECF No. 1 at 3. An unnamed correctional officer held a door for

11 him, and plaintiff alleges that, after that officer told him to “hurry up,” he began to jog toward the

12 doorway. Id. Once he entered the visiting room, however, he alleges that defendant Herrera

13 ordered him into handcuffs and began escorting him to the program office. Id. Herrera, who had

14 apparently ordered plaintiff to stop running during the aforementioned jog, asked plaintiff why he

15 had ignored his orders. Id. Plaintiff claims that he told defendant that he did not hear his order.

16 Id. Herrera then allegedly began to aggressively twist plaintiff’s hand and/or wrist, stopping only

17 when another officer intervened and took over the escort. Id.

18 II. Defendant’s Account

19 Defendant claims that, during the relevant events, he observed plaintiff running across the

20 facility yard, which is not permitted. ECF No. 39 at 7. He gave plaintiff multiple orders to stop

21 running, but plaintiff allegedly ignored them. Id. Defendant then questioned plaintiff in the

22 visiting room where, he alleges, the latter began to grow agitated. Id. Defendant placed plaintiff

23 in restraints and began to escort him to a holding cell. Id. at 7-8. Plaintiff allegedly attempted to

24 impede the escort by refusing to walk. Id. To better control plaintiff, defendant claims he

25 utilized an “accordion hold,” a method officers are taught in training that involves placing one

26 hand on an inmate’s arms and the other on his wrist. Id. at 8.

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1 III. Summary Judgment is Inappropriate

2 Defendant argues that, even if the alleged twist of the hand/wrist occurred, there is no

3 evidence that it was undertaken for the purpose of causing harm. ECF No. 39 at 10. To sustain

4 an Eighth Amendment excessive force claim, a plaintiff must show that the defendant “(1) acted

5 for the very purpose of causing harm; (2) used excessive and unnecessary force under all of the

6 circumstances; and (3) caused the plaintiff harm.” Reid v. United States, 825 F. App’x 442, 445

7 (9th Cir. 2020). The Supreme Court has emphasized that “the core judicial inquiry” in excessive

8 force claims is “whether force was applied in a good-faith effort to maintain or restore discipline,

9 or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)

10 (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In his deposition, plaintiff equivocated,

11 stating first that the use of force “had to be intentionally (sic),” and later that he could not say

12 whether defendant’s actions were intentional, he knew only that the “the actions happened.” ECF

13 No. 39-6 at 30. In his opposition, however, plaintiff clarifies his allegation that defendant was

14 acting “agitated” and “hostile” during the escort, and that defendant was the one who stopped the

15 escort and unnecessarily twisted his hand or wrist. ECF No. 47-1 at 6-7. These differing

16 accounts present a genuine dispute of material fact.

17 In support of his motion, defendant offers video footage of the escort and asserts that it

18 shows that plaintiff stopped walking on his own.1 The video does show that the escort pauses, but

19 I cannot determine whether plaintiff or defendant effects that pause. After several seconds, other

20 officers gather, and plaintiff is escorted into a nearby building without further incident.

21 Nevertheless, given the type of force alleged in this case, the visual absence of a substantial

22 altercation or brawl is not dispositive. Additionally, the video’s angle and distance make it

23 unreliable for determining exactly what did occur. The relevant incident, occurring when the

24 escort is stopped, is far from the camera, and there is, as far as I can tell, no audio to assist the

25 1 Defendant has filed a motion seeking to have that footage filed under seal. ECF No. 40.

He argues that public disclosure of the footage could threaten institutional security at the prison,

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and the safety of staff and other inmates. Id. at 2; ECF No. 40-1 at 2. I find that the motion to

27 seal is properly supported and will direct that the video footage be filed under seal, with the

Clerk’s Office.

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1 viewer in determining what is happening. Accordingly, I find that the video does not resolve the

2 genuine dispute of material fact.

3 In addition to his own declaration, defendant has submitted a declaration from Noriega,

4 the correctional officer whom plaintiff alleges intervened and took control of the escort from

5 defendant. Therein, Noriega states that the events in question could not have occurred on October

6 28, 2022, since she was not at the facility in question on that date. ECF No. 39-4 at 2. But both

7 plaintiff and defendant appear to agree that the escort occurred on October 28, 2022. ECF No. 1

8 at 3; ECF No. 39-2 at 2. Thus, it is unclear if Noriega’s memory as to her presence on that date is

9 faulty, or if she is recalling a separate escort. She states that she does recall Herrera escorting

10 plaintiff on a different, unspecified day but, on that day, plaintiff was resistant to the escort and

11 refused to proceed until she stepped in to deescalate the situation. Id. Afterwards, she and

12 defendant completed plaintiff’s escort together. Id. Noriega declares that she did not see

13 defendant use any force during the escort. Id. This declaration, the confusion over the date

14 notwithstanding, bolsters defendant’s narrative, but it does not, absent some corroborating

15 evidence, conclusively resolve the factual dispute.

16 Finally, I reject defendant’s argument that he is entitled to qualified immunity. He

17 contends that:

18 There is no clearly established law or binding authority that would

have informed every reasonable official in Defendant’s position

19 that the use of a routine hold taught in the academy and in yearly

trainings to assist maintaining order and control during an escort

20 would constitute excessive force. To that end, the hold utilized in

this situation is not recognized as a use of force to begin with.

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22 ECF No. 39 at 11. For the purposes of determining qualified immunity, however, I must view the

23 evidence in the light most favorable to plaintiff, see Sandoval v. Cty. of San Diego, 985 F.3d 657,

24 671 (9th Cir. 2021), and he alleges that defendant twisted his wrist unnecessarily, not to gain

25 compliance, but out of an intent to harm or cause pain, ECF No. 1 at 3. It was clearly established

26 law at the time of the incident that an officer violates a prisoner’s right when he uses force against

27 a non-resistant inmate, not for any legitimate penological objective, but solely for the purposes of

28 causing pain. See Wilkins, 559 U.S. at 37.

1 Conclusion

2 It is ORDERED that:

3 1. Defendant’s request to seal documents, ECF No. 40, is GRANTED. The video

4 | footage submitted in support of Defendant’s Motion for Summary Judgment, attached as Exhibit

5 | A to the declaration of H. Hutcheson, ECF No. 39-8, shall be filed under seal and reviewed in

6 | camera only.

7 2. Plaintiff's motion for extension of time to rule, ECF No. 46, motion to stay ruling,

8 || ECF No. 50, and motion to file supplemental briefing, ECF No. 53, are DENIED.

9 3. Defendant’s motion to strike, ECF No. 51, is DENIED. I have considered only

10 | plaintiff's opposition in deciding the motion for summary judgment.

11 4. The Clerk of Court is directed to assign a district judge to this action.

12 Further, it is RECOMMENDED that plaintiffs “dispositive motion,” ECF No. 38, and

13 | defendant’s motion for summary judgment, ECF No. 39, be DENIED.

14 These findings and recommendations are submitted to the United States District Judge

15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

16 | after being served with these findings and recommendations, any party may file written

17 | objections with the court and serve a copy on all parties. Such a document should be captioned

18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

19 | objections shall be served and filed within fourteen days after service of the objections. The

20 | parties are advised that failure to file objections within the specified time may waive the right to

21 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

22 | v. Yist, 951 F.2d 1153 (9th Cir. 1991).

73 IT IS SO ORDERED.

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Dated: _ July 24, 2026 q———

25 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

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