Opinion
No. CV-08-1500-ROS.
September 27, 2011
ORDER
Defendants Luna, Cortez, Hamilton, Robertson, and Solano moved for summary judgment. (Doc. 71-1). In their reply, Defendants Cortez, Hamilton, Roberston, and Solano concede "that triable issues of [] fact remain concerning [Plaintiff's] Eighth Amendment claim." (Doc. 81). Thus, summary judgment regarding those Defendants will be denied. But Defendant Luna still seeks summary judgment, arguing Plaintiff has not sufficiently countered the evidence that Defendant Luna was not involved in the assault. Viewing the evidence in the light most favorable to Plaintiff, Defendant Luna is not entitled to summary judgment.
I. Summary Judgment Must Be Denied
According to Plaintiff, on July 12, 2006, Officer Luna beat, punched, and kicked him "in the head and body." (Doc. 79 at 6). During his deposition, Plaintiff was asked how he knew Officer Luna was involved in the assault. Plaintiff stated the officer in question was wearing a name tag identifying him as "Luna." (Doc. 79 at 148). The written report regarding the incident identified that officer as Officer Elze. When confronted with a copy of the report during his deposition, Plaintiff expressed some confusion about the identity of that particular officer. Officer Luna now claims he is entitled to summary judgment because Plaintiff has not explained the inconsistency between his deposition, where he allegedly expressed some doubt about Officer Luna's identity, and his declaration where he stated unequivocally that Officer Luna was involved in the assault. Having reviewed the deposition transcript and declaration, there is no conflict.
In fact, Plaintiff stated he knew "for a fact, 100 percent that this officer — his name tag stated, Luna." (Doc. 79 at 149).
Throughout his deposition, Plaintiff stated he believed Officer Luna was involved in the assault. For example, Plaintiff testified that "the officer who I believe to be Luna . . . was kicking me, punching me, whistling . . . and whistling and punching me and kicking me all over my face and all over my body." (Doc. 79 at 165). In his declaration, Plaintiff stated he was "thrown on the floor and beaten, punched, kicked in the head and face and body by Luna, Solano, Cortez, and Hamilton." (Doc. 79 at 52). There is no conflict between Plaintiff testifying an individual who he believed to be Luna assaulted him and then later providing a declaration stating Luna assaulted him. There apparently is some disagreement about the true identity of the individual involved in the assault. But that disagreement must be resolved at trial.
During his deposition, Plaintiff described the physical characteristics of the officer in question. If those physical characteristics do not match Officer Luna, Defendants should have pointed that out rather than claiming Plaintiff made inconsistent statements.
II. Request For 56(d) Continuance Is Moot
III. "Motion To Clarify Misunderstanding" Will Be Denied
Accordingly,
IT IS ORDERED the Motion for Summary Judgment (Doc. 71), the Motion Pursuant to Rule 56(d) (Doc. 80), and Motion to Clarify (Doc. 82) are DENIED.
Dated this 26th day of September, 2011.