Moss v. Uribe

[4] 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA [7] CHRISTOPHER MOSS, 8 Case No. 18-cv-06930-DMR (PR) Plaintiff, 9 ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY 10 JUDGMENT IN PART; AND T. URIBE, et al., DISMISSING NEGLIGENCE CLAIM [11] Defendants. WITHOUT PREJUDICE TO FILING IN 12 STATE COURT 13 I. INTRODUCTION 14 This is a pro se civil rights case filed by Plaintiff pursuant to 42 U.S.C. § 1983 against 15 Salinas Valley State Prison (“SVSP”) Correctional Officers Tereasa Uribe and Amanda Garcia as 16 well as SVSP Chief Physician and Surgeon D. Bright. Plaintiff alleges constitutional violations 17 stemming from a December 1, 2017 incident at SVSP.1 Plaintiff seeks injunctive relief and 18 monetary damages. 19 This action has been assigned to the undersigned magistrate judge. Pursuant to 28 U.S.C. 20 § 636(c), with written consent of all parties, a magistrate judge may conduct all proceedings in a 21 case, including entry of judgment. Appeal will be directly to the United States Court of Appeals 22 for the Ninth Circuit. See 28 U.S.C. § 636 (c)(3). Both parties have consented to magistrate judge 23 jurisdiction in this matter. Dkts. 6, 13. 24 In an Order dated April 8, 2019, the court found that, liberally construed, the complaint 25 stated cognizable Eighth Amendment claims stemming from the December 1, 2017 incident 26 against Defendant Uribe (for use of excessive force by disregarding Plaintiff’s medical chrono and [27] 1 causing injury by using handcuffs) and Defendant Bright (for failure to provide adequate treatment 2 for Plaintiff’s injuries from being handcuffed). Dkt. 8 at 2-3. The court also found that Plaintiff 3 stated a cognizable First Amendment claim in his allegations that, on December 3, 2017, 4 Defendant Garcia denied him access to the grievance procedure at the prison. Id. at 3 . The court 5 exercised supplemental jurisdiction over Plaintiff’s state law negligence claim, and ordered service 6 of the complaint on Defendants Uribe, Garcia and Bright. Id. at 4 . The court issued a briefing 7 schedule for Defendants to file a motion for summary judgment or other dispositive motion. Id. at 8 4-7. 9 Pursuant to that briefing schedule, and after being granted extensions of time to do so, 10 Defendants filed the instant motion for summary judgment. Dkt. 20. Even though Plaintiff was 11 granted an extension of time, he has not filed an opposition to the motion.2 12 For the reasons set out below, Defendants’ motion for summary judgment is GRANTED, 13 in part, and the remaining negligence claim is DISMISSED without prejudice to filing it in state 14 court. 15 II. FACTUAL BACKGROUND3 16 A. The Parties 17 At the time of the events set forth in his complaint, Plaintiff was incarcerated at SVSP. See [18] 2 The court may not grant a motion for summary judgment solely because Plaintiff has [19] failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488 , 1494-95 & n.4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that there are no material issues of [20] fact). This is so even if the failure to oppose violates a local rule. See Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003). The court further notes that Plaintiff filed a letter dated June [21] 29, 2020 in which he makes conclusory legal statements. See Dkt. 24. However, it is not clear if Plaintiff intended it to be an opposition. See id. Defendants have filed a response to Plaintiff’s [22] letter indicating that they “do not interpret this letter to be an opposition” because it “has no exhibits, declarations, nor any other admissible evidence or law.” Dkt. 26 at 2. Further, the court [23] notes that this letter is neither entitled nor labeled as an opposition. Finally, the court notes that Plaintiff did not sign the letter under penalty of perjury. Thus, even if the court construed the [24] letter to be an opposition, it cannot be considered in the analysis as it is unverified because Plaintiff failed to sign it under penalty of perjury. See Dkt. 24. [25] 3 This Order contains many acronyms. Here, in one place, they are: [26] CDCR California Department of Corrections and Rehabilitation [27] CCHCS California Correctional Health Care Services 1 Dkt. 1 at 5.4 During that time frame, Defendants Uribe and Garcia were correctional officers 2 assigned to Facility B, Housing Unit 5 at SVSP. Uribe Decl. ¶ 1; Garcia Decl. ¶ 1. 3 Defendant Bright, who was SVSP Chief Physician and Surgeon at that time, did not 4 examine or treat Plaintiff between December 1, 2017 and November 15, 2018. Bright Decl. ¶¶ 2, 5 5. Plaintiff’s health care issues only came to Defendant Bright’s attention when he reviewed 6 Plaintiff’s electronic healthcare records that related to primary care physician (“PCP”) Dr. 7 Javate’s5 July 6, 2018 request for services, as further explained below. Id. ¶ 7, Ex. A. 8 B. Plaintiff’s Version 9 Plaintiff sustained a “gunshot wound to his left arm in 2010 before his incarceration at 10 [SVSP],” and “suffers from a disability to his arm.” Dkt. 1 at 5. He has a “special medical 11 chrono6 for handcuffs.” Id. (footnote added). His medical history of “neuropathic lower elbow 12 pain” required “alternative restraints,” and he claims that his chrono prevents “physically 13 restrain[ing] [him] in such a manner by using mechanical restrains (handcuffs) [or] man[a]cles.” 14 Id. at 5, 9 (brackets added). 15 Plaintiff alleges that on December 1, 2017, Defendant Uribe used excessive force when she 16 “disregarded [Plaintiff’s] special medical chrono and proceeded to use the steel handcuffs anyway 17 improperly, placing his hands behind his back causing him extreme pain in [his] left wrist and 18 aggravating a swollen wrist abscess full of fluid[] on his right wrist and left arm.” Id. at 5. 19 Plaintiff asserts that Defendant Uribe handcuffed Plaintiff in order to search his cell, and she left 20 the “tight handcuffs on his wrists for 3 hours while [she] and Defendant Garcia searched his cell.” [21] IMSP&P Inmate Medical Services Policies and Procedures [22] O.P. Operational Procedure PCP Primary Care Physician [23] PLRA Prison Litigation Reform Act of 1995 SVSP Salinas Valley State Prison [24] 4 Page number citations refer to those assigned by the court’s electronic case management [25] filing system and not those assigned by the parties. [26] 5 Dr. Javate is not a party in this action. [27] 6 A “chrono,” also known as a “comprehensive accommodation chrono,” is a form that 1 Id. Plaintiff asserts that he did nothing to provoke Defendant Uribe to use such force, and that the 2 cell search was done as “discipline for Plaintiff[’s] slow response to her orders to lock up.” Id. 3 Plaintiff submitted multiple “sick call slips” related to the incident complaining that he had 4 been “injured by the handcuffing by [Defendant] Uribe and . . . [was] suffering pain and disability 5 in his right wrist.” Id. at 6. Plaintiff alleges that Defendant Bright failed to provide adequate 6 treatment for Plaintiff’s aforementioned injuries, and “abused his discretion in denying the 7 recommendations [by] Doctor Javate for offsite medical treatment of the ‘Ganglion Cyst’ on his 8 wrist made worse or aggr[a]vated by the use of mechanical restraints.” Id. at 7, 11. 9 According to Plaintiff, Defendant Garcia “aided [Defendant] Uribe in the cover up of the 10 use of excessive force [by] deliberately sabotaging the CDC-602 grievanc[e] filed by [Plaintiff].” 11 Id. at 10. Specifically, Defendant Garcia received Plaintiff’s complaint relating to the December 12 1, 2017 incident involving Defendant Uribe’s use of excessive force and failed to file it. Id. 13 C. Defendants’ Version 14 1. Plaintiff’s Chrono and Related Medical Treatment/Care Provided 15 a. Plaintiff’s Chrono Regarding Left-Arm Pain 16 Defendants submitted evidence in support of their motion for summary judgment. Plaintiff 17 submitted a verified complaint but did not submit any evidence in opposition to Defendants’ 18 motion. Therefore, Defendants’ evidence shall be treated as undisputed unless disputed by 19 admissible factual assertions in the verified complaint. 20 Plaintiff has been enrolled in the Chronic Care Program for many years. Bright Decl. ¶ 18. 21 In this program, his medical conditions and medication needs were closely monitored. Id. 22 On November 10, 2015, prior to Plaintiff’s arrival at SVSP, a San Quentin State Prison 23 physician documented Plaintiff’s history of nerve pain, pain medications, and complaints of left24 arm pain from a previous gunshot wound in 2010. Id. ¶ 22, Ex. S. At that time, Plaintiff obtained 25 a CDCR Form 7410 comprehensive accommodation chrono or “restraint alert” chrono (“chrono”) 26 which applies to Plaintiff’s left-arm pain caused by a previous gunshot wound and a partial loss of 27 range of motion to the elbow. Id., Ex. R. In the one-page chrono with checked boxes, Plaintiff’s 1 “Other” is his “Restraint Alert for Non-Emergent Escort or Transportation.” Id. In addition, 2 Plaintiff has a “[l]ifting restriction,” which indicates that he is “[u]nable to lift more than 19 3 pounds.” Id. No other boxes are checked on this chrono. Id. 4 Defendants assert that the chrono did not comply with the CDCR Form 7410 reference 5 sheet established by the California Correctional Health Care Services’ Inmate Medical Services 6 Policies & Procedures (“CCHCS’ IMSP&P”), which shows when an upper extremity orthopedic 7 condition would necessitate a restraint-alert chrono. Id. ¶ 23, Ex. T. The San Quentin State Prison 8 physician did not include any supporting documentation to justify his chrono, and thus that 9 physician was unclear as to what type of restraint limitation Plaintiff needed. Id., Ex. R. 10 Moreover, the chrono did not specifically state that it prohibits the use of handcuffs on Plaintiff 11 and did not notify custody staff that any restraint of Plaintiff with handcuffs would cause him pain 12 or injury. Id. 13 Medical staff do not provide direction to custody staff on how to restrain inmates using 14 handcuffs. Id. ¶ 24. Medical staff only advise custody staff that in non-emergent situations, 15 certain inmates should not be handcuffed with a standard handcuff behind the back in order to 16 avoid possible pain and injury. Id. Handcuffing male inmates in the front is not authorized. Id., 17 See Ex. U. 18 Inmate-patients are given a copy of their chronos. See Health Care Dept. Operations 19 Manual (”DOM”), § 3.6.2 Comprehensive Accommodation subsection 4(K). Inmates should 20 maintain a copy of a chrono in order to alert custody staff to any limitations on the use of 21 restraints. Id. ¶ 24. If mechanical restraints are required and the inmate notifies custody staff 22 about a medical limitation, custody staff will use due diligence to reasonably accommodate the 23 inmate’s needs. Uribe Decl. ¶ 12; Garcia Decl. ¶ 10. If the inmate properly notifies custody staff 24 about a chrono that limits the use of restraints, staff can check the inmate’s central file to confirm 25 the chrono. Id.; Bright Decl. ¶ 24. 26 2. Plaintiff’s Ganglion Cyst 27 Plaintiff first reported a ganglion cyst on his right wrist on August 9, 2016. Bright Decl. 1 connects muscle to bone). Id. ¶ 8. It usually appears as a bump (mass) that is soft, changes size, 2 but does not move. Id. Ganglion cysts most commonly occur on the back of the hand at the wrist 3 joint but can also develop on the palm side of the wrist. Id. The cause of ganglion cysts is not 4 known. Id. 5 Plaintiff’s ganglion cyst was continuously monitored by his health care providers. Id. ¶ 19. 6 It was aspirated on February 12, 2019 and by March 15, 2019, it was smaller with minimal 7 symptoms and Plaintiff had good hand strength. Id. A review of Plaintiff’s Electronic Healthcare 8 Records System (“EHRS”)7 confirms that at no time between December 1, 2017 and August 7, 9 2018 was the ganglion cyst on Plaintiff’s right wrist a serious medical condition. Bright Decl. 10 ¶ 26. Additionally, a single handcuffing on December 1, 2017 would have no effect on Plaintiff’s 11 cyst or induce pain and enlargement of the cyst. Id. 12 3. SVSP’s Policies on Random Cell Searches 13 SVSP’s Operational Procedure (“O.P.”) #19 states that floor officers will conduct a 14 minimum of three random cell/bunk/locker searches/inspections within each individual housing 15 unit on a daily basis. Garcia Decl. ¶ 5; Uribe Decl. ¶ 5. Random cell searches are permissible to 16 maintain institutional security in state prisons under the California Code of Regulations, Title 15, 17 § 3287. Random cell searches are an integral part of maintaining security and safety in the prison, 18 and they are performed to control contraband and discover safety hazards. See id.; O.P. #19.6. 19 Contraband includes any items that pose a threat to the safety and security of the institution. O.P. 20 #19.7. For example, contraband could be any items altered from their original manufacture or 21 design, or not allowable pursuant to DOM §§ 54030.20.2-54030.7.2. Id. All contraband is 22 documented on a confiscated cell-search receipt, and if not considered criminal evidence, will be 23 disposed of as “Hot Trash.” Id. Written notice of all contraband removed from a cell and 24 disposed of is recorded on two separate forms, with one form given to the inmate and the other 25 placed with the contraband property. O.P. #19.6 and #19.7. [26] 7 Starting in late 2016, inmates’ medical records are stored in an electronic system called [27] EHRS, which contains an inmate’s medical records in the custody of CDCR. These records are 4. December 1, 2017 Random Cell Search of Plaintiff’s Cell [1] As part of their duties on December 1, 2017, Defendants Uribe and Garcia randomly [2] searched cell numbers 229, 235, and 243. Garcia Decl. ¶ 4; Uribe Decl. ¶ 4. At approximately [3] 7:30 p.m., the officers approached cell number 229 to begin their first cell search that day. Id. ¶ 7; [4] Id. ¶ 7. Cell number 229 was assigned to Plaintiff and his cellmate. Garcia Decl. ¶ 7; Uribe Decl. [5] ¶ 7. During the search of cell number 229, contraband8 contaminated with fungus was discovered, [6] confiscated, and documented on two confiscated cell-search receipts, with a copy given to [7] Plaintiff. Garcia Decl. ¶ 8; Uribe Decl. ¶ 8. Prior to any cell search, the inmates housed in the cell [8] being searched are relocated, and they are usually escorted to the shower located on the same tier. [9] Garcia Decl. ¶ 7; Uribe Decl. ¶ 7. Once the inmates are in the shower, the door is locked, and the [10] cell search can begin. Id. Each cell search usually takes no more than ten to fifteen minutes, and [11] the inmates are returned to their cells after the search is completed. Garcia Decl. ¶ 8; Uribe Decl. [12] ¶ 10. Mechanical restraints are not typically used or needed in the general population housing [13] units like Facility B, Housing Unit 5. Garcia Decl. ¶ 10. There was generally no need, nor were [14] there standing orders given, that required inmates whose cells are being randomly searched, to be [15] restrained at that time. Uribe Decl. ¶ 7. If mechanical restraints were needed and used on Plaintiff [16] that day, Defendant Uribe would have noted it in the unit logbook and notified her supervisor. [17] Uribe Decl. ¶ 18. Defendant Uribe does not recall ever applying mechanical restraints to Plaintiff [18] during the time Plaintiff was housed in the general population unit she was working in for [19] approximately a year and a half. Id. Defendant Garcia has no recollection of Plaintiff being [20] placed in handcuffs on December 1, 2017, or ever handcuffing Plaintiff during her assignment in [21] Housing Unit 5. Garcia Decl. ¶¶ 7 & 9. Plaintiff, however, claims he was handcuffed before the [22] cell search. Dkt. 1 at 5. If restraints are necessary or required when moving an inmate and the [23] inmate notifies the officer regarding his medical limitations, both Defendants Uribe and Garcia [24] state that they do their due diligence to reasonably accommodated the inmate’s needs. Garcia [25] Decl. ¶ 10; Uribe Decl. ¶ 12. If any inmate informs the officers that he has a medical chrono [27] 8 The records show that the contraband found was wet magazines/books wrapped in a tee1 requiring a specific accommodation related to restraints, either Defendant Uribe or Defendant 2 Garcia would need to confirm the accommodation in the Strategic Offender Management System, 3 or call the medical clinic and ask them to run a search of the inmate’s accommodation chronos. 4 Garcia Decl. ¶ 10; Uribe Decl. ¶ 12. Plaintiff did not show or provide a chrono regarding any 5 restraint alerts to either Defendant Uribe or Defendant Garcia on December 1, 2017. Garcia Decl. 6 ¶ 9; Uribe Decl. ¶ 11. Neither officer observed Plaintiff having any physical limitations. Id. 7 Plaintiff never informed or reported any injuries, pain, or suffering to either Defendant Uribe or 8 Defendant Garcia. Id. ¶ 11; Id. ¶ 17. If any inmate reports any pain or suffering, Defendants 9 Uribe and Garcia would give the inmate a request for medical assistance form to submit. Id. If 10 the inmate appeared to be in acute distress, the officer would activate his or her personal alarm and 11 notify medical staff to respond to the inmate’s needs. Id. 12 5. Medical Records or Other Evidence Showing Plaintiff’s Alleged Injury 13 Assuming Plaintiff actually was handcuffed on December 1, 2017, Plaintiff’s health care 14 records do not establish that he suffered any injuries from the alleged handcuffing. Bright Decl. 15 ¶ 26. Handcuffing would not affect Plaintiff’s cyst or induce pain and enlargement. Id. ¶ 9. 16 Plaintiff has been continuously monitored by his health care providers and received appropriate 17 health care treatment and pain medications for his chronic left-elbow pain. Id. ¶ 27. 18 Four days after the incident, Plaintiff filed a request for health care services form, stating 19 there is “a knot on my wrist, it usually comes and goes,” but he claims that, since “12-1-17 when I 20 was placed in handcuffs by a C.O. it came back and it’s extremely hard like a rock. It never has 21 been this hard before.” Bright Decl. ¶ 10, Ex. D. This request does specifically assert that he was 22 in any pain. Id. Over two months later, on February 28, 2018, Plaintiff refused to be seen by his 23 PCP regarding the ganglion cyst on his right wrist. Id. ¶ 11, Ex. E. During the next four months, 24 between March and June 2018, Plaintiff filed four additional CDC No. 7362, Health Care Services 25 Request Forms, on March 4, May 25, June 10, and June 21, 2018. With each request, Plaintiff 26 noted his belief that the cyst was getting bigger. Id. ¶ 12, Exs. G-I. Plaintiff’s June 10 request 27 alleged that his cyst grew bigger since he was placed in handcuffs, and he stated as follows: 6. Plaintiff’s Related 602 Inmate Appeals [1] Plaintiff’s complaint asserts he exhausted two 602 inmate appeals (“appeals” or [2] “grievances”) related to the issues in this case: log numbers SVSP 18-00421 and SVSP 18-00491. [3] Dkt 1 at 1. Plaintiff’s first grievance, log number SVSP 18-00421, was a staff complaint received [4] on January 16, 2017. Papan Decl., Ex. B. Plaintiff asserts he was “handcuffed wrongly and [5] placed in a shower” while his cell “was being searched by [Defendant] Uribe.” Id. Plaintiff’s [6] grievance states he told Defendant Uribe he had “a special cuffing chrono and she has to hand cuff [7] [him] frontward due to a gunshot injury to [his] left dominant arm . . . .” Id. This grievance [8] focuses on the cell search and Plaintiff’s cell search receipts, alleging Defendant Uribe altered a [9] receipt to suggest Plaintiff’s confiscated property was used as weights, which was contrary to his [10] chrono that identified his lifting restriction, which limited him to lifting nothing above 19 [11] pounds.” Id.; see also Bright Decl., Ex. R. Following an investigation and interviews, both the [12] second and third levels of review concluded that staff did not violate policy as alleged by Plaintiff. [13] Papan Decl., Ex. B. [14] Plaintiff’s second grievance, log number SVSP 18-00491, was received on January 19, [15] 2018. Id., Ex. C. Plaintiff asserted Defendant Uribe should not have searched his cell on [16] December 1, 2017 because it had been searched on November 29, 2017. Id. Plaintiff also claimed [17] that she damaged his property and misplaced his family photos. Id. Plaintiff requested the return [18] of his personal belongings. Id. Following an investigation and interviews, Plaintiff’s grievance [19] was denied at all levels of review. Id. [20] Plaintiff’s complaint does not reference any health care grievances, but his health care [21] grievance history reveals that he initiated three health care grievances originating from SVSP: log [22] numbers SVSP HC 18001752, SVSP HC 18002212, and SVSP HC 19000244. Gates Decl. ¶ 8, [23] Ex. A. Two of Plaintiff’s health care grievances involve claims related to the care of his right [24] wrist (log numbers SVSP HC 18001752 and SVSP HC 19000244), but only one (log number [25] SVSP HC 18001752) was initiated between December 1, 2017 (the incident date) and November [26] 15, 2018 (the date he filed his lawsuit). Id. ¶ 9, Exs. B-D. Log number SVSP HC 18001752 is [27] also the only health care grievance that Plaintiff exhausted at the headquarters level. Id. Plaintiff 1 asserted a staff complaint/deliberate indifference claim, alleging: (1) a registered nurse delayed his 2 medical treatment from January 2018 to May 2018 regarding his right wrist; (2) the medication 3 prescribed, naproxen 500 mg., sometimes caused his wrist to go numb; and (3) the need for 4 surgery to drain fluid in the knot on his right wrist. Id. ¶¶ 10-12, Ex. B. Headquarters level 5 reviewing authority found that Plaintiff’s issue did not meet the criteria established for a staff 6 complaint level of review. Id. ¶ 12. The basis for the headquarters level decision noted Plaintiff 7 was enrolled in the Chronic Care Program, where his medical conditions and medication needs 8 were closely monitored. Id. The reviewing authority’s disposition decided no intervention was 9 needed. Id. 10 III. DISCUSSION 11 A. Legal Standard for Summary Judgment 12 Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate 13 that there is “no genuine issue as to any material fact and that the moving party is entitled to 14 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those that may affect the 15 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 16 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 17 the nonmoving party. Id. 18 The party moving for summary judgment bears the initial burden of identifying those 19 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 20 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will 21 have the burden of proof on an issue at trial, it must demonstrate affirmatively that no reasonable 22 trier of fact could find other than for the moving party. But on an issue for which the opposing 23 party will have the burden of proof at trial, the moving party need only point out “that there is an 24 absence of evidence to support the nonmoving party’s case.” Id. at 325 . 25 Once the moving party meets its initial burden, the nonmoving party must go beyond the 26 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a 27 genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is concerned only with disputes over 1 Anderson, 477 U.S. at 248 . It is not the task of the court to scour the record in search of a genuine 2 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 3 has the burden of identifying, with reasonable particularity, the evidence that precludes summary 4 judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to 5 a judgment as a matter of law.” Celotex, 477 U.S. at 323 . 6 For purposes of summary judgment, the court must view the evidence in the light most 7 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 8 evidence produced by the nonmoving party, the court must assume the truth of the evidence 9 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 10 The failure to exhaust administrative remedies is an affirmative defense that must be raised 11 in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 12 banc). The defendants have the initial burden to prove “that there was an available administrative 13 remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172 . If the 14 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 15 showing that there is something in his particular case that made the existing and generally 16 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 17 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 18 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166 . 19 B. Evidence Considered 20 A district court may consider only admissible evidence in ruling on a motion for summary 21 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 22 In support of their dispositive motion, Defendants have presented their own declarations 23 and supporting exhibits, as well as declarations and supporting exhibits from the following: 24 CCHCS Chief of the Health Care Correspondence and Appeals Branch S. Gates and Defendants’ 25 attorney, Deputy Attorney General Virginia Papan. Dkts. 20-1 – 20-6. 26 Meanwhile, as mentioned Plaintiff has not filed an opposition, but he has filed a verified 27 complaint. Dkt. 1. The court construes the complaint as an affidavit under Federal Rule of Civil 1 admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454 , 460 & nn.10-11 (9th Cir. 2 1995). 3 C. Analysis 4 1. Injunctive Relief Claims 5 Plaintiff seeks injunctive relief as well as monetary damages. The jurisdiction of the 6 federal courts depends on the existence of a “case or controversy” under Article III of the 7 Constitution. PUC v. FERC, 100 F.3d 1451 , 1458 (9th Cir. 1996). A claim is considered moot if 8 it has lost its character as a present, live controversy, and if no effective relief can be granted: 9 “Where the question sought to be adjudicated has been mooted by developments subsequent to 10 filing of the complaint, no justiciable controversy is presented.” Flast v. Cohen, 392 U.S. 83 , 95 11 (1968). Where injunctive relief is involved, questions of mootness are determined in light of the 12 present circumstances. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996). 13 When an inmate has been transferred to another prison and there is no reasonable 14 expectation or demonstrated probability that he will again be subjected to the prison conditions 15 from which he seeks injunctive relief, the claim for injunctive relief should be dismissed as moot. 16 See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). A claim that the inmate might be re17 transferred to the prison where the injury occurred is too speculative to overcome mootness. Id. 18 Plaintiff seeks injunctive relief to remedy his alleged injuries stemming from constitutional 19 violations during his previous incarceration at SVSP. However, Plaintiff has since been 20 transferred to Santa Rita Jail. Because Plaintiff is no longer incarcerated at SVSP, his claims for 21 injunctive relief based on his confinement at SVSP are DISMISSED as moot. The Court now 22 proceeds to review Plaintiff’s remaining claims for monetary damages. 23 2. First Amendment Claim Against Defendant Garcia 24 Plaintiff claims that Defendant Garcia “aided [Defendant] Uribe in the cover up of the use 25 of excessive force [by] deliberately sabotaging the CDC-602 grievanc[e] filed by [Plaintiff].” Dkt. 26 1 at 10. Specifically, Plaintiff asserts that Defendant Garcia received Plaintiff’s complaint relating 27 to the December 1, 2017 incident involving Defendant Uribe’s use of excessive force and failed to 1 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 2 343, 350 (1996). The right of meaningful access to the courts extends to established prison 3 grievance procedures. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) abrogated on other 4 grounds by Shaw v. Murphy, 532 U.S. 223 (2001); accord Hines v. Gomez, 853 F. Supp. 329 , 3315 32 (N.D. Cal. 1994). This right is subsumed under the First Amendment right to petition the 6 government for redress of grievances, see id. at 333 , and protects both the filing, see id., and 7 content, see Bradley, 64 F.3d at 1279 , of prison grievances. Regulations that punish an inmate for 8 using “hostile, sexual, abusive or threatening” language in a written grievance, for example, are 9 not reasonably related to penological interests and therefore violate the First Amendment. See id. 10 at 1279-82. 11 Although there is a First Amendment right to petition the government for redress of 12 grievances, there is no right to a response or any particular action. See Flick v. Alba, 932 F.2d 13 728, 729 (8th Cir. 1991) (“prisoner’s right to petition the government for redress ... is not 14 compromised by the prison’s refusal to entertain his grievance.”). Furthermore, a prison official’s 15 failure to process grievances, without more, is not actionable under section 1983. See Buckley v. 16 Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th 17 Cir. 2003) (holding that prisoner’s claimed loss of a liberty interest in the processing of his appeals 18 does not violate due process because prisoners lack a separate constitutional entitlement to a 19 specific prison grievance system). 20 Here, Defendants argue that Plaintiff’s sweeping conclusory allegations against Defendant 21 Garcia will not suffice to defeat summary judgment. Dkt. 20 at 26 (citing Leer v. Murphy, 844 22 F.2d 628, 633 (9th Cir. 1988) (A person deprives another of a constitutional right within the 23 meaning of section 1983 if he does an affirmative act, participates in another’s affirmative act or 24 omits to perform an act, which he is legally required to do, that causes the deprivation of which the 25 plaintiff complains.)). The court agrees. The record shows that correctional floor officers do not 26 handle inmate grievances, and thus Defendant Garcia was not legally required to process any 27 inmate grievances. See Garcia Decl. ¶ 14. The established procedure for inmates who wish to 1 box at the officer’s desk, where it is picked up by the appeals office once a day and processed by 2 the appeals office. See id. The record confirms that Plaintiff is aware of the procedure for 3 submitting grievances because he successfully filed two grievances relating to the December 1, 4 2017 incident, which were dated January 19, 2018 (log number SVSP-18-00421) and February 28, 5 2018 (log number SVSP-18-0091). See Dkt. 1 at 1-2; Papan Decl., Exs. B-C. 6 In this case, Defendant Garcia contends under penalty of perjury that she “did not receive 7 or pick-up any inmate grievance from [Plaintiff],” and that “if [Plaintiff] or any other inmate [had] 8 left an inmate grievance in [the] mail for pick-up, [Defendant Garcia] would [have] return[ed] it to 9 [Plaintiff] and [told] him to file it in the appeals box.” Garcia Decl. ¶ 15. In a conclusory manner, 10 Plaintiff claims that Defendant Garcia “did receive the [grievance] on December 1st, 2017, and 11 that [the grievance] was never filed with institution[’]s office of appeals.” Dkt. 1 at 10. Even if it 12 were true that Defendant Garcia received and failed to file the December 1, 2017 grievance, her 13 failure, without more, would not be actionable under section 1983. See Buckley, 997 F.2d at 495 ; 14 Flick, 932 F.2d at 729. 15 It is undisputed that Plaintiff was permitted to file grievances at SVSP, and that he was 16 able to submit grievances regarding the facts at issue in this case—including Defendant Uribe’s 17 alleged use of excessive force. See Dkt. 1 at 1-2; Papan Decl., Exs. B-C. Plaintiff does not 18 dispute this, and thus he has failed to show evidence that Defendant Garcia’s actions prevented 19 him from exercising his First Amendment rights to file grievances. Based on the foregoing, 20 Defendants have established the absence of a genuine issue of material fact with respect to the 21 First Amendment claim against Defendant Garcia. See Celotex Corp., 477 U.S. at 323 . In 22 response, Plaintiff has failed to identify with reasonable particularity any evidence that precludes 23 summary judgment. See Keenan, 91 F.3d at 1279 . Accordingly, Defendants are entitled to 24 summary judgment on this claim. Id.; see Celotex Corp., 477 U.S. at 323 . 25 3. Eighth Amendment Claim Against Defendant Bright 26 Defendants argue that Plaintiff did not exhaust available administrative remedies regarding 27 his claim against Defendant Bright for Eighth Amendment deliberate indifference to serious 1 Plaintiff only submitted three health care appeals at SVSP: log numbers SVSP HC 18001752, 2 SVSP HC 18002212, and SVSP HC 19000244. Gates Decl. ¶ 9. One of them, log number SVSP 3 HC 18002212, is irrelevant to the claims in the instant action as it was filed nine months later after 4 the December 1, 2017 incident and involved an allegation that a nurse “refused to give him his PM 5 medication and he wanted this pain medication given to him nightly so he can sleep.” Id. ¶ 13, Ex. 6 C. The two remaining health care grievances involved claims related to the care of his right wrist 7 (log numbers SVSP HC 18001752 and SVSP HC 19000244), but only one of them (log number 8 SVSP HC 18001752) was initiated during the relevant time frame of this action.9 Id. ¶ 9, Exs. B, 9 D. 10 Log number SVSP HC 18001752 was the only health care grievance that Plaintiff 11 exhausted at the headquarters level. Id. In this grievance, Plaintiff asserted a staff 12 complaint/deliberate indifference claim, alleging: (1) a registered nurse delayed his medical 13 treatment from January 2018 to May 2018 regarding his right wrist; (2) the medication prescribed, 14 naproxen 500 mg., sometimes caused his wrist to go numb; and (3) the need for surgery to drain 15 fluid in the knot on his right wrist. Id. ¶¶ 10-12 , Ex. B. Defendants argue that Plaintiff never 16 submitted any grievance to the headquarters level with allegations against Defendant Bright or 17 Defendant Bright’s treatment of Plaintiff’s alleged injuries from being handcuffed on December 1, 18 2017. Id. ¶ 15 . Thus, Defendants argue that Plaintiff did not exhaust his administrative remedies 19 as to his Eighth Amendment claim against Defendant Bright, and they are entitled to summary 20 judgment on this claim. Id. 21 Before turning to its analysis, the court briefly reviews the requirements of the PLRA and 22 administrative review process applicable to California prisoners. 23 a. Legal Framework 24 The PLRA requires a prisoner to exhaust “available administrative remedies” before [26] 9 Log number SVSP HC 19000244 is irrelevant to the claims in the instant action because it was filed on February 22, 2019, more than a year after the December 1, 2017 incident. Gates [27] Decl. ¶ 14, Ex. D. In SVSP HC 19000244, Plaintiff claims that on February 12, 2019, an 1 bringing an action with respect to prison conditions. 42 U.S.C. § 1997e(a). “[T]he PLRA’s 2 exhaustion requirement applies to all inmate suits about prison life, whether they involve general 3 circumstances or particular episodes, and whether they allege excessive force or some other 4 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 5 Exhaustion of all “available” remedies is mandatory; those remedies neither need meet 6 federal standards, nor must they be “plain, speedy, and effective.” Booth v. Churner, 532 U.S. 7 731, 739-40 (2001). The PLRA requires proper exhaustion of administrative remedies. Woodford 8 v. Ngo, 548 U.S. 81, 83 (2006). “Proper exhaustion demands compliance with an agency’s 9 deadlines and other critical procedural rules because no adjudicative system can function 10 effectively without imposing some orderly structure on the course of its proceedings.” Id. at 9011 91. Thus, compliance with prison grievance procedures is required by the PLRA to exhaust 12 properly. Id. The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or 13 otherwise procedurally defective administrative grievance or appeal.” Id. at 84 . 14 The CDCR provides its inmates and parolees the right to appeal administratively “any 15 policy, decision, action, condition, or omission by the department or its staff that the inmate or 16 parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 17 welfare.” Cal. Code Regs. tit. 15, § 3084.1 (a).10 18 To initiate an appeal, the inmate or parolee must submit a CDCR Form 602 describing the 19 issue to be appealed to the Appeals Coordinator’s office at the institution or parole region for 20 receipt and processing. Id. § 3084.2(a)-(c). The level of detail in an administrative grievance 21 necessary to exhaust a claim properly is determined by the prison’s applicable grievance 22 procedures. Jones v. Bock, 549 U.S. 199, 218 (2007). The level of specificity required in the 23 appeal is described in the California Code of Regulations as follows: 24 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification 25 of staff members, the inmate or parolee shall include the staff [26] 10 The regulations pertaining to the inmate appeal process were amended effective January 27 28, 2011. Plaintiff’s grievances were submitted after January 28, 2011; therefore, the amended member’s last name, first initial, title or position, if known, and the 1 dates of the staff member’s involvement in the issue under appeal. [2] Cal. Code Regs. tit. 15, § 3084.2 (a)(3) (emphasis added). 3 Prisoners may file complaints regarding healthcare policies, decision, actions, conditions, 4 or omissions using a CDCR Form 602. Cal. Code Regs. tit. 15, §§ 3999.226 , 3999.227(a). Such 5 complaints are subject to two levels of review—an institutional level of review and a headquarters 6 level of review. Id. Health care grievances are subject to a headquarters’ disposition before 7 administrative remedies are deemed exhausted. Cal. Code Regs. tit. 15, § 3999.226 (g). 8 All levels of health care appeals/grievances, including the institutional and headquarters 9 levels of review, are tracked through a computer database known as the Health Care Appeals and 10 Risk Tracking System. Gates Decl. ¶ 4. 11 b. Defendants’ Initial Burden of Proving a Failure to Exhaust 12 Defendants argue that Plaintiff failed to exhaust administrative remedies relating to his 13 Eighth Amendment claim against Defendant Bright because that claim is not contained in his three 14 submitted health care appeals, log numbers SVSP HC 18001752, SVSP HC 18002212, and SVSP 15 HC 19000244. Gates Decl. ¶¶ 9, 13-14, Exs. B-D; Dkt. 20 at 17-18. The court finds that nothing 16 in Plaintiff’s prison record shows that he submitted grievances to the final level of review 17 appealing medical claims related to the allegations against Defendant Bright or Defendant Bright’s 18 treatment of Plaintiff’s alleged injuries from being handcuffed on December 1, 2017. See id. 19 Therefore, the evidence submitted by Defendants satisfies their initial burden of proving that there 20 were available administrative remedies for Plaintiff, and that Plaintiff failed to exhaust those 21 remedies properly, see Albino, 747 F.3d at 1172 . 22 c. Plaintiff’s Burden of Proving Unavailability of Administrative Remedies 23 Defendants adequately have shown that there were available administrative remedies that 24 Plaintiff did not exhaust fully as to his medical claims relating to the Eighth Amendment claim 25 against Defendant Bright. As such, the burden shifts to Plaintiff “to come forward with evidence 26 showing that there is something in his particular case that made the existing and generally 27 available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1166 . 1 Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010). The prisoner must demonstrate “(1) that 2 he actually filed a grievance or grievances that, if pursued through all levels of administrative 3 appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and 4 (2) that prison officials screened his grievance or grievances for reasons inconsistent with or 5 unsupported by applicable regulations.” Id. at 823-24 . 6 Defendants have presented evidence that Plaintiff’s prison records prove he did not submit 7 grievances through CDCR’s administrative grievance process concerning the Eighth Amendment 8 claim against Defendant Bright. Plaintiff’s verified complaint does not discuss any of the 9 aforementioned health care appeals. See Dkt. 1. 10 In Plaintiff’s June 29, 2020 letter, which the court has not considered to be an opposition to 11 the motion for summary judgment, Plaintiff claims that he “did file a 602 [appeal] on [Defendant] 12 Bright around September 2018, but [he] left to [go to] another prison yard still on [SVSP] and 13 never got a response.” Dkt. 24 at 3. Even if the court considered the assertion, it is too conclusory 14 to meet Plaintiff’s burden to establish unavailability of administrative remedies. Although 15 Plaintiff is not required to allege that he resorted to extraordinary measures in order to exhaust his 16 administrative remedies, conclusory allegations that the administrative remedies process is 17 inadequate are insufficient to defeat dismissal for failure to exhaust. See White v. McGinnis, 131 18 F.3d 593, 595 (6th Cir. 1997). Plaintiff alleges that the administrative remedies were made 19 unavailable to him, but the court is not required to scour the record to determine whether Plaintiff 20 has made a particular argument in support of that allegation. Thus, the conclusory evidence 21 presented by Plaintiff is insufficient to defeat Defendants’ motion for summary judgment as to the 22 Eighth Amendment claim against Defendant Bright. Furthermore, the fact that Plaintiff was able 23 to file a total of three health care appeals at SVSP, one of which he pursued to the headquarters 24 level of review, suggests that he had adequate access to the administrative appeals process. See 25 Gates Decl. ¶¶ 9, 13-14, Exs. B-D. The evidence produced by Defendants is sufficient to carry 26 their ultimate burden of proof to show that Plaintiff’s Eighth Amendment claim against Defendant 27 Bright is unexhausted. Accordingly, Defendants are entitled to summary judgment based on the 1 Defendant Bright, and their motion is GRANTED as to this claim. Plaintiff’s Eighth Amendment 2 deliberate indifference claim against Defendant Bright for monetary damages is DISMISSED 3 without prejudice to refiling after exhausting California’s prison administrative process. 4 4. Eighth Amendment Claim Against Defendant Uribe 5 The court will now consider Defendants’ argument as to the remaining Eighth Amendment 6 excessive force claim against Defendant Uribe that: (1) the undisputed material facts based on the 7 evidence fail to show that Defendant Uribe’s actions of handcuffing Plaintiff were malicious and 8 sadistic for the purpose of causing harm; and (2) they are entitled to qualified immunity as to this 9 claim. Dkt. 20 at 18-21, 22-23. 10 Plaintiff alleges that on December 1, 2017, Defendant Uribe used excessive force when she 11 “disregarded [Plaintiff’s] special medical chrono and proceeded to use the steel handcuffs anyway 12 improperly, placing his hands behind his back causing him extreme pain in [his] left wrist and 13 aggravating a swollen wrist abscess full of fluid[] on his right wrist and left arm.” Dkt. 1 at 5. In 14 its initial screening of Plaintiff’s complaint, the court recognized this allegation as an Eighth 15 Amendment excessive force claim. Dkt. 8 at 2-3. Under that standard, Plaintiff must show that 16 prison officials acted “sadistically and maliciously” rather than in a “good faith effort to maintain 17 or restore discipline” in order to prevail. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) 18 (whenever prison officials stand accused of using excessive force in violation of Eighth 19 Amendment, core judicial inquiry is whether force was applied in good-faith effort to maintain or 20 restore discipline, or maliciously and sadistically to cause harm); LeMaire v. Maass, 12 F.3d 1444 , 21 1452-54 (9th Cir. 1993) (“malicious and sadistic” standard applies where prisoner levels his 22 complaint at measured practices and sanctions used in exigent circumstances or imposed with 23 considerable due process to maintain control over difficult prisoners). 24 In determining whether the prison officials’ use of force was for the purpose of 25 maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a 26 court may evaluate the need for application of force, the relationship between that need and the 27 amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the 1 Hudson, 503 U.S. at 7 ; LeMaire, 12 F.3d at 1454 . In weighing the Hudson factors, a court must 2 accord prison administrators wide-ranging deference in the adoption and execution of policies and 3 practices to further institutional order and security. Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 4 2001). 5 Defendants point out that, “[a]s an initial matter, under CDCR policy, applying handcuffs 6 is not even considered using force.” Dkt. 20 at 19 (citing DOM § 51020.6). Moreover, 7 Defendants stress that “random cell searches are an integral part of maintaining security and safety 8 in the prison, and are performed to control contraband and discover safety hazards.” See id. 9 (citing O.P. #19.6). Defendants also point out that the December 1, 2017 search of Plaintiff’s cell 10 revealed items determined to be contraband, so those items were confiscated. Id. (citing Garcia 11 Decl. ¶ 5; Uribe Decl. ¶ 8). Defendants argue that “[i]f the Court finds that applying handcuffs 12 can be considered using force, then assuming Plaintiff’s version of the story is true and Defendant 13 Uribe did, in fact, put Plaintiff in handcuffs during the cell search, then the only force Defendant 14 Uribe used was that which was necessary to ensure the safety and security of the prison.” Id. at 15 19-20. 16 Defendants are entitled to summary judgment on Plaintiff’s excessive force claim because 17 there is no genuine dispute of material fact that Defendant Uribe was acting in a good faith effort 18 to maintain or restore discipline, and not sadistically and maliciously, if and when she handcuffed 19 Plaintiff behind his back. See Hudson, 503 U.S. at 6-7 ; LeMaire, 12 F.3d at 1452-54 . 20 The undisputed facts show that on December 1, 2017, Defendants Uribe and Garcia 21 randomly search cells (one of which belonged to Plaintiff). Garcia Decl. ¶ 5; Uribe Decl. ¶ 7. At 22 about 7:30 p.m., Defendants Uribe and Garcia approached Plaintiff’s cell and relocated Plaintiff 23 and his cellmate. See id. According to Defendants Uribe and Garcia, the normal procedure during 24 cell searches are as follows: they ask the inmates to step out of their cells for a cell search, escort 25 the inmates to a holding area (the shower), and close the door in the holding area so they could 26 begin their ten to fifteen-minute cell search. See id. 27 Taking the facts in the light most favorable to the Plaintiff, the court assumes that he was 1 Plaintiff’s claim that he was left in handcuffs for over three hours, see id., is belied by the 2 evidence, see Garcia Decl., Ex. A. Defendant Garcia’s logbook indicates that the search of cell 3 number 229, which was Plaintiff’s cell, began at 7:30 p.m., and then two other cells were 4 searched—cell numbers 235 and 243. Garcia Decl. ¶ 6, Ex. A. The next entry in Defendant 5 Garcia’s logbook indicates that at 8:25 p.m., he “[r]eceived I/M [inmate],” and thus the cell 6 searches were completed by that time. Id. Defendant Garcia states that the search of Plaintiff’s 7 cell “took approximately ten minutes and then [Plaintiff] and [his cellmate] were returned to their 8 cell.” Id. ¶ 8. 9 Although Plaintiff claims he has a “special medical chrono” mandating that he only be 10 handcuffed in the front, the evidence in the record does not support his having that specific type of 11 chrono at the time of the incident. See Bright Decl. ¶ 22, Ex. R. First, it is important to note that 12 Plaintiff’s Restraint Alert for Non-Emergent Escort or Transportation” chrono applies only to 13 Plaintiff’s left-arm pain caused by a previous gunshot wound and a partial loss of range of motion 14 to the elbow. Id. The chrono does not apply to his right wrist, where the ganglion cyst was 15 located. See id. The record also shows that this chrono was “unclear on what type of restraint 16 limitation Plaintiff needed, and did not provide custody [staff] direction as to how to restrain 17 [Plaintiff] using handcuffs.” Id. ¶ 23, Ex. R. Moreover, Plaintiff’s chrono “did not completely 18 prohibit any use of handcuffs on Plaintiff.” Id. The San Quentin State Prison physician who 19 issued the chrono did not include any supporting documentation to justify his chrono, and thus that 20 physician was unclear as to what type of restraint limitation Plaintiff needed. Id. Moreover, the 21 chrono did not provide custody staff any information notifying them that any restrain of Plaintiff 22 with handcuffs would cause him pain or injury. Id. Finally, the record shows that Plaintiff’s 23 ganglion cyst on his right wrist was a preexisting condition that he had first reported back in 2016, 24 Bright Decl. ¶ 9, Ex. B, but Plaintiff admitted it “usually comes and goes,” id. ¶ 10, Ex. D. Thus, 25 even if Plaintiff had presented Defendant Uribe with the chrono, summary judgment would still be 26 proper. Plaintiff has failed to set forth facts that would lead a reasonable juror to believe that 27 Defendant Uribe acted sadistically and maliciously for the purpose of causing Plaintiff harm— 1 his back for ten to fifteen minutes while she searched his cell. See Hudson, 503 U.S. at 6-7 ; 2 LeMaire, 12 F.3d at 1452-54 . 3 An application of the Hudson factors to the facts in the record instead would lead a 4 reasonable juror to believe that Defendant Uribe acted in a good faith effort to maintain or restore 5 discipline and order. See id. There is no indication that the amount of force used was 6 disproportionate for the situation or that Plaintiff sustained significant injuries as the record shows 7 that “a single handcuffing on December 1, 2017 would have no effect on Plaintiff’s [ganglion] 8 cyst or induce[d] pain and enlargement of the cyst.” Bright Decl. ¶ 26. Contrary to Plaintiff’s 9 claims, “[a] review of Plaintiff’s EHRS confirms that at no time between December 1, 2017 and 10 August 7, 2018, was the ganglion cyst on Plaintiff’s right wrist ever a serious medical condition.” 11 Id. ¶ 9. While Plaintiff made a health care services request four days after the incident, on 12 December 4, 2017, he did not complain of pain and instead stated that there is “a knot on my 13 wrist, it usually comes and goes,” but he claims that since “12-1-17 when I was place[d] in 14 handcuffs by a C.O. it came back and it’s extremely hard like a rock . . . .” Id. ¶ 10, Ex. D. The 15 record shows that Plaintiff was handcuffed only for ten to fifteen minutes (the time it took for the 16 cell search), and that he neither complained of nor exhibited any immediate signs of injury from 17 having been handcuffed for such a short time. Uribe Decl. ¶¶ 10, 11; Garcia Decl. ¶¶ 8, 9. There 18 is no evidence that either Defendant Uribe or Defendant Garcia knew that a single handcuffing 19 would cause, or did cause, Plaintiff harm. Garcia Decl. ¶¶ 7, 9, 11, 12 ; Uribe Decl. ¶¶ 7, 11, 13; 20 Bright Decl. ¶¶ 23, 26, 27. 21 Plaintiff has failed to present any medical records or other evidence (other than his 22 unsupported statements) in support of his allegation that Defendant Uribe’s use of handcuffs 23 during the cell search resulted in injury to his wrist. Such conclusory allegations of injury without 24 medical records or other evidence of injury are insufficient to create a genuine issue of fact as to 25 Plaintiff’s excessive force claim. See Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978) 26 (“Conclusory allegations unsupported by factual data will not create a triable issue of fact.”) 27 (citation omitted); see, e.g., Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 , 922 (9th 1 failed to meet her burden of proof of providing specific facts to show that the force used was 2 unreasonable); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (summary judgment in 3 favor of defendant doctor appropriate as to conclusory claim that doctor failed to adequately 4 respond to respiratory arrest because record showed otherwise and such conclusory assertions 5 insufficient to raise issue of material fact). Under the circumstances, no reasonable juror could 6 find that Defendant Uribe “sadistically and maliciously” handcuffed Plaintiff behind his back for 7 the purpose of causing him harm. Hudson, 503 U.S. at 6-7 . 8 Defendants also are entitled to summary judgment on qualified immunity grounds. Under 9 Saucier v. Katz, 533 U.S. 194 (2001), the court must undertake a two-step analysis when, as here, 10 Defendants assert qualified immunity in a motion for summary judgment. The court first faces 11 “this threshold question: Taken in the light most favorable to the party asserting the injury, do the 12 facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201. If the court 13 determines that the conduct did not violate a constitutional right, the inquiry is over, and the 14 officer is entitled to qualified immunity. If the court determines that the conduct did violate a 15 constitutional right, it then moves to the second step and asks, “whether a right [was] clearly 16 established” such that “it would be clear to a reasonable officer that his conduct was unlawful in 17 the situation he confronted.” Id. at 201-02. Even if the violated right was clearly established, 18 qualified immunity shields an officer from suit when he decides that, even if constitutionally 19 deficient, reasonably misapprehends the law governing the circumstances he confronted. 20 Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205-06. If “the officer’s 21 mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity 22 defense.” Id. at 205. 23 Viewing the facts in the light most favorable to Plaintiff, it cannot be said that reasonable 24 officers in Defendant Uribe’s position would have believed that they were acting unlawfully by 25 handcuffing Plaintiff behind his back for ten to fifteen minutes during a cell search. See Saucier, 26 533 U.S. at 201-02. As discussed above, even if Plaintiff’s allegations are taken as true, the 27 undisputed material facts based on the evidence show that Defendant Uribe is entitled to qualified 1 that Defendant Uribe’s actions caused an Eighth Amendment violation, and a reasonable officer 2 could have believed that her conduct in handcuffing an inmate during a cell search for a short 3 period of time was lawful. Moreover, Plaintiff’s medical accommodation did not completely 4 prohibit handcuffing and Plaintiff did not immediately report afterwards that he was in pain or 5 injured. Instead, Plaintiff waited four days after the incident before he filed a request of health 6 care services, and then he failed to report any pain—just his belief that the handcuffing made his 7 cyst “extremely hard.” Bright Decl. ¶ 10, Ex. D. Therefore, Defendants are entitled to qualified 8 immunity on this excessive force claim. See Brosseau, 543 U.S. at 198 . 9 Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiff’s claim 10 that Defendant Uribe violated his Eight Amendment rights by handcuffing him behind his back on 11 December 1, 2017. See Celotex, 477 U.S. at 323 . 12 5. Negligence Claim 13 Although federal courts have supplemental jurisdiction over state law claims under 28 14 U.S.C. § 1367 (a), they may decline to exercise it under 28 U.S.C. § 1367 (c). Acri v. Varian 15 Associates, Inc., 114 F.3d 999, 1000 (9th Cir. 1997). Because summary judgment has been 16 granted to Defendants on the federal claims in this case, the court declines to exercise 17 supplemental jurisdiction over Plaintiff’s remaining state law negligence claim. See United Mine 18 Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 19 343 , 350 n.7 (1988); Bryant v. Adventist Health Sys./West, 289 F.3d 1162 , 1169 (9th Cir. 2002). 20 Therefore, Defendants’ motion for summary judgment is DENIED as to Plaintiff’s remaining 21 negligence claim, and this claim is DISMISSED without prejudice to filing it in state court. 22 IV. CONCLUSION 23 For the reasons outlined above, the court rules as follows: 24 1. Because Plaintiff is no longer incarcerated at SVSP, his claims for injunctive relief 25 based on his confinement at SVSP are DISMISSED as moot. 26 2. Defendants’ motion for summary judgment (dkt. 20) is GRANTED in part on the 27 basis that: 1 Amendment claim against Defendant Garcia; 2 b. Plaintiff failed to exhaust administrative remedies as to his Eighth 3 Amendment deliberate indifference claim against Defendant Bright; and 4 c. the undisputed material facts based on the evidence fail to showthat 5 Defendant Uribe’s actions of handcuffing Plaintiff were malicious and sadistic for the purpose of 6 causing harm, and Defendants are entitled to qualified immunity as to the Eighth Amendment 7 excessive force claim against Defendant Uribe. 8 2. Defendants’motion for summary judgment (dkt. 20) is DENIED in part as to the 9 remaining state law claim of negligence, and such a claim is DISMISSED without prejudice to 10 filing in state court. 11 3. The Clerk of the Court shall terminate all pending motions and close the file. 12 4. This Order terminates Docket No. 20. 13 IT IS SO ORDERED. 14 Dated: October 6, 2020 ______________________________________ DONNA M. RYU 15 United States Magistrate Judge