United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (dkt. no. 49) ("R&R") regarding Defendant Kevin Pauli's motion for summary judgment (dkt. no. 20) and Plaintiff's cross-motion seeking a continuance under Rule 56(d) (dkt. no. 31). Plaintiff filed an objection to the R&R and Defendant has filed a response. (Dkt. nos. 50, 51.)
Following screening of the complaint pursuant to 28 U.S.C. § 1915A, this action was permitted to proceed against correctional officers Kevin Pauli ("Pauli") and Jack Starling ("Starling") on Plaintiff's claim that he was subjected to excessive use of force in violation of his Eighth Amendment rights. (Dkt. no. 3.) The incident giving rise to this claim occurred on May 29, 2012, when Plaintiff initiated a verbal and physical confrontation with Starling that led to Pauli firing a blank round followed by a live round.
On May 29, 2012, Starling escorted thirteen (13) inmates into the 7/8 quad to show them where they would be housed. (Dkt. no. 20-1.) There were unrestrained inmates, including Plaintiff, on the 7/8 quad yard. ( Id.) As Starling began to read out inmates' names and assigned locations, other inmates began yelling out to the inmates moving into the quad. ( Id. ) Starling stopped and yelled to these inmates to reduce their noise level when Plaintiff told him to shut up and quit disrespecting them. ( Id. ) Starling told Plaintiff he was not addressing him and heard another inmate attempt to calm Plaintiff. ( Id. ) However, Plaintiff started talking and again said that Starling was disrespecting him. ( Id. ) Starling again said he was not talking to Plaintiff. ( Id. ) Starling noticed that Plaintiff had clenched his hands into fists, began pacing back and forth and then jumped from his position on the concrete stump and started to walk towards the "redline." ( Id. ) Starling directed Plaintiff multiple times to stop at the line but Plaintiff ran to his side and struck him on the jaw. ( Id. )
Pauli was the assigned "gunrail" officer for units 7 and 8 and was positioned on top of Unit 7 C-D. (Dkt no. 20-2.) Pauli heard Starling's response to Plaintiff - that Starling was not addressing Plaintiff and was not disrespecting Plaintiff. ( Id. ) From where he was positioned, Pauli was not able to see or hear Plaintiff so Pauli moved to the bridge over the entrance of the yard in order to better observe Plaintiff. ( Id. ) Pauli observed Plaintiff cross "over the red line at the front of the yard in an aggressive manner to where Officer Starling was standing." ( Id. ) Pauli saw Plaintiff hit Starling. ( Id. )
The parties' accounts of what happened next vary. According to Starling, after Plaintiff struck him, Starling "swung back." (Dkt. no. 20-1.) As Starling was trying to place Plaintiff on the ground, Pauli fired a warning shot but Plaintiff continued trying to fight and Pauli fired a live round. ( Id. ) According to Pauli, he gave repeated orders for Plaintiff to get on the ground and stop fighting. (Dkt. no. 20-2.) Plaintiff did not comply and continued to fight Starling. ( Id. ) Pauli racked the shot gun and continued to order Plaintiff to stop fighting and to lie on the ground. ( Id. ) "The fight then went to the ground but [Plaintiff] did not comply with the order to stop fighting with Officer Starling." ( Id. ) Pauli then fired a blank round as he continued to give his orders to Plaintiff to stop fighting and to lie on the ground. ( Id. ) When Plaintiff refused and continued to hit Starling, Pauli "fired one live round (7 ½ bird shot) approximately one to three yards in front of [Plaintiff and Starling] attempting to skip the shot into [Plaintiff]." ( Id. ) Plaintiff stopped fighting and Starling restrained him. ( Id. ) Other officers then arrived to help control the situation in the yard. ( Id. )
According to Plaintiff, he was complying with orders to lie down on the ground on his stomach, when without justification, defendant Starling "reached down, bounced my head on the ground" and "began punching me in the head and around my neck area." (Dkt. no. 4 at 4-5; dkt. no. 31 at 47.) Plaintiff alleges that this conduct was unexpected and he was trying his best "to defend" himself from being beaten. (Dkt. no. 31 at 47.) Plaintiff alleges that Pauli then shot him with a 12-gauge shotgun, striking him in the bottom of his left foot and back of his right leg. ( Id. )
Defendant Pauli moved for summary judgment. The Magistrate Judge recommended granting summary judgment, finding there is no genuine dispute of material fact for trial. Plaintiff objects to the Magistrate Judge's recommendation.
A. Legal Standard
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). As Plaintiff has objected to the Magistrate Judge's R&R, the Court conducts a de novo review.
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) ( citing Fed.R.Civ.P. 56(c)). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be ...