Opinion
Civil No. 99-2119-DMS(POR).
September 26, 2005
REPORT AND RECOMMENDATION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc Nos. 109, 117, 120]
I. INTRODUCTION
Plaintiff Adam Avratin is a state prisoner proceeding on a civil rights complaint pursuant to 42 U.S.C. § 1983 against Defendant Bermudez, a correctional officer at Centinela State Prison. Plaintiff claims that Defendant used excessive force in violation of his Eighth Amendment rights, by firing a block gun directly into Plaintiff's leg.
Defendant has brought a Motion for Summary Judgment, claiming (1) Plaintiff has failed to show Defendant used excessive or unnecessary force or that his use of force caused Plaintiff's injuries; and (2) Defendant is entitled to qualified immunity. Plaintiff filed an Opposition to Defendant's motion and Defendant filed a Reply.
First, Defendant contends Plaintiff has failed to show Defendant used excessive or unnecessary force or that his use of force caused Plaintiff's injuries, and the Motion for Summary Judgment should therefore be granted for failure to prove an essential element of the claim under Rule 56. Plaintiff however maintains he has presented sufficient evidence showing a genuine issue of material fact for trial. Because Plaintiff has met his burden of developing evidence sufficient to support his allegations and his claim of excessive force, this Court recommends Defendant's Motion for Summary Judgment be DENIED in that regard.
Second, Defendant claims he is entitled to qualified immunity against Plaintiff's allegations that he used excessive force. Because Defendant has not demonstrated that the force he used was reasonable, this Court finds Defendant is not entitled to qualified immunity and recommends Defendant's Motion to for Summary Judgment be DENIED in that regard.
II. PROCEDURAL BACKGROUND
In August of 1999, Plaintiff filed a complaint in the Eastern District of California, for violation of his civil rights pursuant to 42 U.S.C § 1983, alleging Defendant violated his Eighth Amendment right to be free from cruel and unusual punishment.
In September 1999, the case was transferred to the Southern District of California based on improper venue pursuant to 28 U.S.C. § 1404(b) — the substantial part of the events having occurred in the Southern District of California. (S.D. Cal. Civ. Docket No. 99-2119 (Sept. 30, 1999 Transfer Order) (Doc. 1)). On November 12, 1999, The Honorable Napoleon A. Jones dismissed the action without prejudice because Plaintiff had not paid the requisite filing fee. (Id. (Doc. 2)). Plaintiff received permission to proceed in forma pauperis, and filed a First Amended Complaint on November 14, 2000. (Id. (Doc. 35)).
On August 14, 2002, Judge Jones granted in part and denied in part Defendants' Motion to Dismiss the First Amendment Complaint: granted without prejudice on the issue of Eleventh Amendment Immunity (because Defendant was named in his official capacity only) but denied on administrative exhaustion. (Id. (Doc. 62).) Plaintiff filed his Second Amended Complaint on October 23, 2002, deleting all defendants except for Defendant Bermudez, and naming him in his individual capacity. (Id. (Doc. 65)).
On June 30, 2003, Judge Jones denied Defendant's Motion to Dismiss the Second Amended Complaint on grounds of failure to exhaust administrative remedies and on qualified immunity, based on a Report and Recommendation by this Magistrate Judge. (Doc.89). On August 29, 2003, Defendant Bermudez answered the Second Amended Complaint. (Doc.91)
Defendant moved for Summary Judgment on February 28, 2005. (Doc. 109). Plaintiff filed an Opposition to the Motion on March 17, 2005 and Defendant Replied on March 24, 2005. (Id. (Docs. 117, 120)).
III. FACTUAL BACKGROUND
Plaintiff inmate alleges Defendant officer violated his Eighth Amendment right to be free from cruel and unusual punishment by Defendant's application of excessive force. Plaintiff contends that Defendant intentionally shot him in retaliation for an earlier disagreement. Specifically, Plaintiff alleges that in mid-February 1998, the parties had an argument regarding Plaintiff covering his cell window, during which Defendant "threatened to harm plaintiff Avratin if he ever got out of line." (See Second Amended Complaint (SAC) at 2-4; Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 3).
Several weeks later, on February 28, 1998, Defendant and other officers intervened in an altercation between Plaintiff and another inmate in the administrative segregation yard. Several of the officers, including Defendant, were armed with "block guns," which fire 37mm wooden rounds. It is undisputed that Defendant fired several rounds in the vicinity of the fighting inmates.
According to Plaintiff, Defendant shot him from behind a fence, at a distance of two feet while Plaintiff was prone to the ground. Plaintiff contends that Defendant "maliciously and intentionally shot [Plaintiff] at point blank range in the thigh for the purpose of causing him harm," despite officer Lee's plea for use of less lethal force and despite prison regulations requiring block guns be shot from a distance so as to ricochet into the intended target. (Id.). Plaintiff alleges he was shot despite Officer Lee pleading with Defendant to use O.C. pepper spray, because of Defendant's close proximity to Plaintiff. (Id.). Plaintiff states the shot caused a deep wound, splitting his right thigh open two inches wide and an quarter of an inch deep. (Id.). Plaintiff contends that, based on these allegations, Defendant acted with excessive force. Plaintiff seeks compensatory and punitive damages. (SAC at 8).
Defendant however contends that he used the minimum force necessary to stop the fight and did not use any unnecessary or excessive force. (Deft's Mot. for Sum. J. at 6-7). Specifically, Defendant argues there was a clear need to use such force because the inmates ignored all orders to stop fighting, even after being sprayed with pepper spray. (Id.). Defendant asserts the force was reasonable because the staff were required to stop the fight immediately, and yet the officers were not permitted to enter the yard where the inmates were fighting, but were required to stop the fight from outside the fenced yard. (Id.) Also, the fight had to be stopped immediately to protect other inmates and prevent escalation of the incident. (Id. at 7). Defendant also argues that the force used was the least amount of force necessary to stop the fight, evidenced by the fact that Plaintiff's injuries were not severe. (Id.). Additionally, Defendant argues that it is not clear that Defendant actually caused Plaintiff's injuries because it is possible another officer's shot instead hit Plaintiff. (Id.). Defendant contends that, based on these factors, Defendant's use of force was appropriate and necessary, therefore Plaintiff fails to show there are genuine issues of material fact and also that Defendant is entitled to qualified immunity, such that Defendant's Motion for Summary Judgment must be granted.
IV. DISCUSSION
The Court has considered all parties' submissions including exhibits and the lodged videotape recording of the incident. For the reasons discussed below, this Court recommends that Defendant's Motion for Summary Judgment be denied because (1) a genuine issue of material fact exists and (2) Defendant has not demonstrated entitlement to qualified immunity sufficient to shield him from civil litigation.
A. Standard of Review on Summary Judgment
Summary judgment is properly granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).
A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. See Fair Hous. Council of Riverside County, 249 F.3d 1132, 1136 (9th Cir. 2001) (citing Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n. 5 (9th Cir. 2000)). The materiality of a fact is thus determined by the substantive law governing the claim or defense. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 620, 630 (9th Cir. 1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970). However, to avoid summary judgment, the nonmovant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). "[A] Party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The court may not weigh evidence or make credibility determinations on a motion for summary judgment. Quite the opposite, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The nonmovant's evidence need only be such that a "fair-minded jury could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 252. However, in determining whether the nonmovant has met his burden, the court must consider the evidentiary burden imposed upon him by the applicable substantive law. Id. B. General Liability under 42 U.S.C. § 1983
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue; and (2) that the conduct deprived claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983;Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); seeHaygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
Here, there appears to be no dispute that Defendant acted under color of state law in his individual capacity as a Centinela State Prison official. West v. Atkins, 487 U.S. 42, 49 (1998). Thus, this case turns on the second inquiry: whether Defendant deprived Plaintiff of any constitutional right. Here, Plaintiff alleges Defendant deprived him of his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment.
C. Eighth Amendment Violation: Excessive Force
Plaintiff alleges Defendant deprived him of his constitutional right to be free from cruel and unusual punishment through use of excessive force.
The use of excessive force by a prison official constitutes a violation of the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979). "`Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.'" Whiteley, 475 U.S. at 321-322 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). That deference extends to prophylactic or preventative measures intended to reduce breaches of prison discipline. Id.
"[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). When determining whether the force used was excessive, we look to the "extent of injury . . ., the need for application of force, the relationship between that need and the amount of force used, the threat `reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response.'" Id. at 7 (quotingWhitley v. Albers, 475 U.S. 312, 321 (1986)); Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc).
Courts are "generally cautious" about granting summary judgment when motivation and intent are at issue. Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985). Because a determination of state of mind usually entails drawing factual inferences, and because a summary judgment motion requires that the court view the evidence in the light most favorable to the nonmoving party, summary judgment is often inappropriate in cases in which the moving party's state of mind is an issue. White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (stating that "[w]here the defendant's intent is at issue, summary judgment is appropriate `only if all reasonable inferences defeat the plaintiff's claims.'"); Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985); Simpson v. United States, 652 F.2d 831, 834 (9th Cir. 1981).
Here, Defendant claims that his motivation and intent were only to stop the fight and not to hurt any inmates. (See Deft's Mot. Sum. J. at 7). However, Plaintiff claims that Defendant's motivation was retaliation for their prior argument and that his intent was to injure Plaintiff. (See Plaintiff's Opp. at 1). Thus, Defendant's state of mind and intent are put directly at issue.
This Court considers the allegations in the light most favorable to Plaintiff, as appropriate for summary judgment. After an altercation in February 1998, during which Defendant "threatened to harm plaintiff Avratin if he ever got out of line," Defendant responded to an altercation between Plaintiff and another inmate. (See Second Am. Complaint at 2-3). Although he was within two feet of Plaintiff, Defendant allegedly "maliciously and intentionally shot [Plaintiff] at point blank range in the thigh for the purpose of causing him harm," even despite another officer's plea for use of less lethal force and despite prison policy requiring block guns be shot from a distance so as to ricochet into the intended target. (Id.).
As this Court previously found, and with which Judge Jones agreed, these allegations are sufficient to state a claim of excessive force under the Eighth Amendment. (Report and Recommendation Granting in Part and Denying in Part Defendants' Motion to Dismiss, Doc. No. 27, July 13, 2000; Order Granting in Part and Denying in Part Defendants' Motion to Dismiss, Doc. No. 32, Sept. 18, 2000 (construing same alleged facts but resolving Motion to Dismiss original complaint)). To shoot at point blank range, an unarmed inmate engaged in a fistfight, only for the purpose of exacting retaliation, would indeed maliciously and sadistically cause harm under Hudson and inflict unnecessary and wanton harm under Whitley. Thus, because there would be a Constitutional violation if Plaintiff were to prove the facts he alleges, that Defendant shot him harboring malicious intent, there is a genuine issue of material fact regarding Defendant's intent, sufficient to allow Plaintiff to proceed to trial.Hudson 503 U.S. at 6-7.
Further, with respect to causation, Plaintiff claims it was Defendant's ammunition round that shot him. (See Plaintiff's Opposition at 5). Defendant claims Plaintiff cannot prove that it was. (Deft's Mot. Summ. J. at 7). Whether or not Defendant's ammunition actually shot Plaintiff is a genuine issue of material fact. The parties present conflicting versions of the interpretation of the videotaped recording of the incident. The Court has reviewed the tape numerous times. The recording reveals a sequence of at least three bursts of smoke, representing a discharge of something, presumably either O.C. pepper spray or a block gun round. The tape shows the sequence of events to be not inconsistent with Plaintiff's alleged facts, that the first and second bursts of smoke, occurring when Plaintiff was closer to the fence where Defendant stood, could be from Defendant's gun. (Plaintiff's Opp. at 3). However, it is also possible that Defendant's account of the events is true, that the earlier bursts of smoke are from O.C. pepper spray, not from block gun discharge, and that instead the later bursts of smoke are from Defendant's gun discharge, occurring when Plaintiff is further away from the fence. Defendant alleges he fired later in time when Plaintiff had moved further away from the fence, such that there was sufficient distance for Defendant to appropriately ricochet his ammunition off the ground before it contacted Plaintiff.
Defendant asserts that the evidence upon which the Plaintiff primarily relies, regarding both Defendant's intent and causation, was fabricated by Plaintiff and therefore cannot be relied upon as an undisputed fact for purposes of a motion for summary judgment. The true facts of this case, absent testimony, and perhaps even expert testimony, cannot be ascertained based on the record before the Court. A thorough review of the record reveals multiple material disputes of fact which must be resolved by a trier of fact. Hudson at 6-7. To the extent these facts require evaluation of credibility of witnesses, the determination rests solely with the trier of fact. Anderson, 477 U.S. at 255. Therefore, the Court RECOMMENDS DENIAL of Defendant's Motion for Summary Judgment on these grounds.
D. Qualified Immunity
Defendant contends he is entitled to immunity from suit regarding Plaintiff's allegations of excessive force because he reasonably could have believed the conduct of which he is accused was lawful under the circumstances. (See Deft's Mot. Sum. J. at 11). The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law."Malley v. Briggs, 475 U.S. 335, 341 (1986).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether the defense of qualified immunity is available. Id. at 200-01. The court must first answer a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. If no constitutional right was violated based on the facts as alleged, the inquiry ends and Defendant prevails. Id.
If "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. . . . The contours of the right must be sufficiently clear that `a reasonable official would understand that what he is doing violated that right.' . . . the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Application to Plaintiff's Case
Here, for the reasons set forth above, the Court has found that genuine issues of material fact exist to show a violation of Plaintiff's Eighth Amendment rights. Assuming the evidence in the light most favorable to Plaintiff, Defendant's actions violated Plaintiff's constitutional right to be free from cruel and unusual punishment. See Saucier, 533 U.S. at 201; Marquez, 322 F.3d at 692. Thus, the threshold test is satisfied.
However, "even though there would be a constitutional violation if [Plaintiff] were to prove the facts that he posits, [Defendant] may nevertheless be entitled to qualified immunity if a reasonable officer could have believed his conduct was lawful."Marquez v. Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003). Such a result is possible because there is no speculation as to the officer's subjective intent permitted in the qualified immunity test. Indeed, as the Marquez court found in reversing the District Court, the constitutional inquiry and the qualified immunity inquiry must not be collapsed into one, but kept as two distinctly separate analysis. Id. at 691. Whereas intent is a part of the constitutional test (whether Defendant violated an Eighth Amendment right) since it assumes the facts as alleged by Plaintiff, including what Plaintiff alleges Defendant's intent was, the qualified immunity inquiry is an objective look at whether a reasonable officer under the same external circumstances could have believed his conduct was lawful. Id. at 692.
As recently clarified by the Ninth Circuit, once a constitutional violation has been shown, see Saucier, 533 U.S. at 201, the proper analysis of qualified immunity is: "(1) Was the law governing the state official's conduct clearly established? (2) Under that law could a reasonable state official have believed his conduct was lawful?" Id. (quoting Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 1995); Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995) (internal quotation marks omitted)).
(1) Clearly Established
In this case, the court must determine, whether it was clearly established at the time of the alleged incident, that the use of a block gun to fire directly upon a prisoner by a correctional officer during a physical fight between prisoners to curtail their violent conduct, was unlawful?
The facts and time line of this case are somewhat similar toMarquez, where an inmate alleged that the officer's act of shooting him during assault on another inmate constituted use of excessive force. See Marquez at 693. In reversing the District Court, the Ninth Circuit held the officer was entitled to qualified immunity because a reasonable officer could believe that shooting one inmate in the leg to stop an assault that could have seriously injured or killed another inmate was a good faith effort to restore order, and thus lawful. Id. The Marquez court found that the law regarding force in such a situation was clearly established:
". . . we have already held in Jeffers, which also involved the shooting of an inmate during a prison disturbance, that the law governing prison officials' conduct was clearly established in Whitley. Jeffers, 267 F.3d at 910-11. Whitley was decided in 1986, so its rule was the controlling rule when the incident in this case occurred."Marquez at 692. (citing Whitley, 475 U.S. at 319).
In Marquez, a riot broke out in the prison yard in which many combatants were involved in a physical fight. Id. at 691. The officer intentionally shot the plaintiff in the leg after his orders to stop fighting were ignored. Id. The court based its decision on the finding that the law regarding a prison guard's use of excessive force was clearly established in 1998, when the alleged unconstitutional conduct occurred. Hudson v. McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S. 312 (1986).
The present case similarly involves a prison guard's use of force during an altercation between inmates. As in Marquez, the officer was faced with a fight in the prison yard involving Plaintiff. Similar to Marquez, the officer reacted by shooting at inmates. Thus, the excessive force law the Marquez court found as clearly established was also clearly established for the present case. Additionally, the prison regulations which are not disputed by either party, apparently require that guards ricochet the ammunition off the ground before hitting inmates, and prohibit direct fire on inmates. (See Defendant Bermudez Deposition page 14 line 8). Thus, due to the clearly established law in conjunction with the prison's ricochet policy, an officer in Defendant's position would understand whether his actions violated constitutional rights. Because the law regarding force was clearly established, the first prong of the qualified immunity test is satisfied.
(2) Reasonableness
The second prong of the qualified immunity inquiry asks, whether under that established law could a reasonable officer have believed his conduct was lawful. See Saucier at 201;Marquez at 692. Construing the facts alleged as true and in the light most favorable to Plaintiff, Plaintiff alleges that Defendant shot him from behind a fence, at a distance of two feet, and while Plaintiff was prone to the ground. (See Second Am. Complaint at 3-4). Plaintiff also alleges Defendant shot him despite Officer Lee pleading with Defendant to use O.C. pepper spray, because of Defendant's close proximity to Plaintiff. (Id.). Plaintiff further alleges Defendant's shooting of him at point blank range was in direct contravention to prison regulations, which require a block gun be ricocheted into its target. (Id.). Defendant does not dispute this policy. (See Defendant Bermudez Depo. at page 14, line 8). In a qualified immunity analysis, the only factor that the Court cannot construe in favor of Plaintiff is Defendant's internal motive.
Regardless of the officer's intent, when taking these allegations as true, this Court finds Defendant has not shown his actions were reasonable so as to warrant qualified immunity. An officer standing where Plaintiff alleges Defendant stood, approximately two feet away, would not find it reasonable to fire directly upon an inmate in a prone position, for the purpose of stopping a fist fight, unlike in Marquez where the court found defendant officer was entitled to qualified immunity because "a reasonable officer could believe that shooting one inmate in the leg to stop an assault that could have seriously injured or killed another inmate was a good faith effort to restore order, and thus lawful." Marquez at 693 (emphasis added).
A reasonable officer in the present situation would recognize that the clearly established law, in conjunction with the policy to ricochet bullets off the ground and to not fire directly upon the inmates, would be violated by direct fire. Unlike Marquez, there are no facts to indicate the fight in which the inmates were engaged was life-threatening to any person. See Id. Plaintiff alleges he was laying prone, on the ground. (Plaintiff's Opposition at 3). There were no weapons involved in the inmates' altercation. (See Id. at 3; Deft's Mot. Sum. J. at 3) It was a fist fight between only two inmates, and with no apparent risk of harm to any other inmates or guards, unlike inMarquez where the melee involved a large number of inmates. The medical evidence indicates Plaintiff's injuries were not overly severe. (See Deft's Mot. Sum. J. at 4-5; 7). Thus, there was apparently no emergency such that the fight had to be stopped immediately, or at all costs. Certainly Defendant's job was to stop the fight quickly in accordance with prison policy, however, not at the cost of Plaintiff's civil rights. Other, less drastic measures could have been implemented. Because other guards were shooting at the same time, there was no real need for Defendant to simultaneously shoot directly at Plaintiff. Other officers were aware of the situation and were also working to control it. (See Id. at 4). Defendant was not a lone officer in a desperate situation in need of such drastic force. Defendant has not shown that under these facts, an officer in the same situation would have found it reasonable to directly fire upon Plaintiff at that time. Therefore, the Court RECOMMENDS the Motion for Summary Judgement also be DENIED on these grounds.
V. CONCLUSION
In sum, Defendant asserts that the evidence upon which the Plaintiff primarily relies for his Opposition to this motion for summary judgment was fabricated by Plaintiff and therefore cannot be relied upon as an undisputed fact for purposes of a motion for summary judgment. On motions for summary judgment, the Courts cannot make determinations of credibility. Since this motion primarily hinges on issues of credibility as relates to the evidence, these genuine factual issues can only be properly resolved by a finder of fact. Additionally, Defendant is not entitled to qualified immunity for the reasons set forth above, therefore, the Court RECOMMENDS that Defendant's Motion for Summary Judgment be DENIED.
This report and recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) (1988). IT IS ORDERED that no later than October 17, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than October 27, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.