(PC) Taylor v. Commissioner of the California Department of Corrections and Rehabilitation ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PRESTON TAYLOR, Case No. 1:20-cv-00798-ADA-SAB (PC) 10 Plaintiff, ORDER ADOPTING FINDINGS AND 11 v. RECOMMENDATIONS, DENYING DEFENDANT TURNER’S MOTION FOR 12 COMMISSIONER OF CALIFORNIA SUMMARY JUDGMENT AND DEPARTMENT OF CORRECTIONS AND REFERRING MATTER BACK TO 13 REHABILITATION, et al., MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS 14 Defendants. (ECF Nos. 77, 85) 15 16 17 Plaintiff Preston Taylor (“Plaintiff”) is proceeding in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 3, 2022, the assigned United States Magistrate Judge issued findings and 21 recommendations recommending Defendant Turner’s motion for summary judgment be denied. 22 (ECF No. 85.) The findings and recommendations were served on the parties and contained 23 notice that any objections were to be filed within twenty-one (21) days after service. (Id. at 11- 24 12.) Defendant filed objections on November 23, 2022. (ECF No. 86.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, including Defendant’s 27 objections, the Court finds the findings and recommendations to be supported by the record and by proper analysis. 1 First, Defendant argues that the findings and recommendations erred by relying on the 2 contradicted declaration of Plaintiff to create reasonable inferences to conclude that there is a 3 genuine dispute of material fact in relation to the excessive force finding. (ECF No. 86 at 2.) An 4 affidavit is a sham only where the inconsistency between a party’s deposition testimony and the 5 subsequent affidavit is “clear and unambiguous.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 6 998-99 (9th Cir. 2009). As the Magistrate Judge reasoned, Plaintiff’s declaration and deposition 7 testimony are not so obviously inconsistent as to render the declaration a sham. (ECF No. 85 at 8 8.) Accordingly, the Court agrees with the findings and recommendations and will not strike 9 Plaintiff’s declaration as a sham. 10 Second, Defendant asserts that the findings and recommendations erred by relying on two 11 additional pieces of information to find that there was a dispute of fact: (1) the findings asserted 12 that Plaintiff, in deposition, asserted that he was looking at Defendant Turner when he was shot; 13 and (2) the findings asserts that Plaintiff asserted he saw Defendant Turner point his launcher at 14 Plaintiff’s direction. (ECF No. 86 at 3-4.) As the Magistrate Judge had explained in his findings 15 and recommendations, a genuine issue of material fact as to Plaintiff’s excessive force claim 16 exists. Defendant Turner claimed he initially aimed his launcher at inmate Earle and then at 17 inmate Kirkland, and never aimed the launcher or shot at Plaintiff. (Turner Decl. ¶¶ 3-5.) 18 However, Plaintiff submits that he was shot in the head with a 40 MM launcher after the inmate 19 fight ended and while Plaintiff was away from the involved inmates. Given the existence of 20 genuine issues of material facts, the outcome of the case will turn on the jury’s credibility 21 determination. 22 With respect to the qualified immunity claim, Defendant Turner argues that the 23 undisputed facts show that it would have been reasonable and lawful for him to use his 40 mm 24 launcher to quell the tensions. (ECF No. 86 at 4.) The Court disagrees. As the Magistrate Judge 25 reasoned, there is a genuine issue over whether the fight between inmates was over when 26 Defendant Turner aimed and shot at Plaintiff. (ECF No. 85 at 11.) Therefore, Defendant Turner 27 is not entitled to qualified immunity. 1 Accordingly, 2 1. The findings and recommendations issued on November 3, 2022, (ECF No. 85), are 3 ADOPTED in full; 4 2. Defendant Turner’s motion for summary judgment filed on September 22, 2022, 5 (ECF No. 77), is DENIED; and 6 3. The matter is referred back to the Magistrate Judge for further proceedings. 4 8 g | IT IS SO ORDERED. 10 Dated: _ January 11, 2023 UNITED £TATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28