1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY LEE COLLINS, No. 2:23-cv-1600 CSK P 12 Plaintiff, 13 v. ORDER AND 14 KURGAN, ET AL., FINDINGS & RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 complaint under

. Defendants’ fully briefed motion for summary judgment is 19 before the Court. As discussed below, defendants’ motion should be denied. 20 I. PLAINTIFF’S FIRST AMENDED COMPLAINT 21 In his verified first amended complaint, plaintiff alleges that on November 5, 2022, 22 Correctional Officer Kurgan handcuffed plaintiff against the unit six wall while plaintiff was in 23 the medication line at California State Prison, Sacramento. (ECF No. 17 at 3.) Defendant 24 Kurgan then threw plaintiff to the floor, and whispered in plaintiff’s ear that camera isn’t working 25 while kneeing plaintiff a few times. (Id.) Kurgan then pressed his alarm for correctional officers 26 to respond. When defendant Jones arrived, Kurgan told Jones that plaintiff had assaulted Kurgan 27 by kicking Kurgan while plaintiff was in the medication line. Defendant Jones used excessive 28 force by kneeing plaintiff in the middle of his back, stopping plaintiff’s breathing, and causing 1 pain and pressure, then punched plaintiff a few times. (Id. at 4.) When defendant Kurgan lifted 2 plaintiff up to his feet, Jones kicked plaintiff in his belly. (Id.) 3 II. LEGAL STANDARDS FOR SUMMARY JUDGMENT 4 Summary judgment is appropriate when it is demonstrated that the standard set forth in 5 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 6 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 7 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 8 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 9 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 10 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 11 12 Celotex Corp. v. Catrett,

(1986) (quoting then-numbered Fed. R. Civ. P. 13 56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need 14 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 15 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.),

, 16 387 (9th Cir. 2010) (citing Celotex Corp.,

); see also Fed. R. Civ. P. 56 advisory 17 committee notes to 2010 amendments (recognizing that “a party who does not have the trial 18 burden of production may rely on a showing that a party who does have the trial burden cannot 19 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 20 should be entered, after adequate time for discovery and upon motion, against a party who fails to 21 make a showing sufficient to establish the existence of an element essential to that party’s case, 22 and on which that party will bear the burden of proof at trial. Celotex Corp.,

. 23 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 24 necessarily renders all other facts immaterial.”

. 25 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 26 the opposing party to establish that a genuine issue as to any material fact actually exists. See 27 Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). In attempting to 28 establish the existence of such a factual dispute, the opposing party may not rely upon the 1 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 2 form of affidavits, and/or admissible discovery material in support of its contention that such a 3 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita,

n.11. The opposing party 4 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 5 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc.,

, 248 6 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n,

(9th Cir. 7 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 8 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc.,

, 1436 9 (9th Cir. 1987), overruled on other grounds as stated in Flood v. Miller,

, 703 n.3 10 (9th Cir. 2002). 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 13 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 14 trial.” T.W. Elec. Serv.,

. Thus, the “purpose of summary judgment is to ‘pierce 15 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 16 Matsushita,

(quoting Fed. R. Civ. P. 56(e) advisory committee’s notes to 1963 17 amendments). 18 In resolving a summary judgment motion, the court examines the pleadings, depositions, 19 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 20 Civ. P. 56(c). A verified complaint may be considered as evidence at the summary judgment 21 stage “if it is based on personal knowledge and if it sets forth the requisite facts with specificity.” 22 Lopez v. Smith,

, 1132 n.14 (9th Cir. 2000) (en banc). The evidence of the 23 opposing party is to be believed. See Anderson,

. All reasonable inferences that 24 may be drawn from the facts placed before the court must be drawn in favor of the opposing 25 party. See Matsushita,

. Nevertheless, inferences are not drawn out of the air, and 26 it is the opposing party’s obligation to produce a factual predicate from which the inference may 27 be drawn. See Richards v. Nielsen Freight Lines,

(E.D. Cal. 1985), 28 aff’d,

, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 1 party “must do more than simply show that there is some metaphysical doubt as to the material 2 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 3 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,

(citation 4 omitted). 5 By notice filed on August 5, 2025, plaintiff was advised of the requirements for opposing 6 a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 59-4 7 (citing Rand v. Rowland,

(9th Cir. 1998) (en banc)).). 8 III. FACTS AND EVIDENCE 9 A. Undisputed Facts 10 For purposes of summary judgment, the undersigned finds the following facts are 11 undisputed. 12 1. On November 5, 2022, the date of the incident at issue herein, plaintiff was an inmate 13 incarcerated by the California Department of Corrections and Rehabilitation, and 14 housed at California State Prison, Sacramento. 15 2. Defendants Kurgan and Jones were employed as correctional officers at California 16 State Prison, Sacramento, on November 5, 2022. 17 3. Plaintiff admits that he “probably” made an offensive statement to Kurgan before the 18 incident. (Pl.’s Dep. at 48:23-49:2.) 19 4. Following the use of force on November 5, 2022, defendant Kurgan authored a Rules 20 Violation Report (“RVR”) against plaintiff, Log No. 7238922, citing him for battery 21 on a peace officer in violation of California Code of Regulations title 15, section 22 3005(d)(1). (ECF No. 59-2 at 39-41.) 23 5. At the March 31, 2023 hearing on the RVR, plaintiff was found guilty, and assessed a 24 credit loss of 121 days. (Id. at 29-38.) There is no evidence that this guilty finding 25 has been overturned, or that the 121 days of lost credits have been restored. 26 B. Disputed Facts and Evidence 27 The parties dispute what took place on November 5, 2022. The RVR contains defendant 28 Kurgan’s statement concerning the incident: 1 On Saturday, November 5, 2022 at approximately 0840 hours I was performing my duties as A6 Floor 2 on 2/W. Inmate COLLINS 2 (BN8025, A6-102U) (Later Identified via Issued state Identification card) approached my partner Officer T. Gorman and I In A Facility 3 6 block rotunda during morning medication pass. COLLINS stated as he approached “I should just kill all of you fuckin pigs”. Inmate 4 COLLINS took a bladed fighting stance with clenched fists, I gave a direct order to COLLINS to face the wall with his hands behind his 5 back to which he complied, Officer Gorman and I placed COLLINS against the staff bathroom wall area, As I attempted to place 6 mechanical hand restraints on inmate COLLINS, he became more erratic and began thrashing his upper body left and right. Inmate 7 COLLINS utilized his left foot to kick and make contact with my right shin. I spoke loud and clear English to and gave COLLINS a 8 direct order to “Get Down” with negative results as he continued thrashing, I used immediate physical force to gain compliance with 9 a lawful order, overcome resistance, effect custody and subdue the attacker by pulling COLLINS down to the ground. I maintained 10 control of COLLINS left arm by placing my left hand on his left bicep and my right hand on his left wrist, Officer Gorman maintained 11 control of COLLINS right side. Due to my focus on the inmate’s attack I did not see where Officer Gorman’s exact hand placement 12 was. Officer Gorman and I placed inmate COLLINS on the ground to the prone position in front of the staff office in A6. The physical 13 force had the desired effect as COLLINS stopped resisting, I maintained control of COLLINS left arm with both of my hands and 14 placed it behind his back while applying minimal pressure. Responding staff arrived and I observed Officer C. Earnshaw place 15 hand restraints on COLLINS wrists. I was relieved by Officer Earnshaw as he took over my physical placement on inmate 16 COLLINS. I removed myself from the Incident area and exited the housing unit. I received a 7219 medical evaluation from responding 17 medical staff. Officer Earnshaw took photographic evidence of my person soon after. 18 19 (ECF No. 59-2 at 39.) As evidence, defendants provided portions of plaintiff’s deposition, a copy 20 of the Abstract of Judgment for plaintiff’s current commitment offense, and a complete copy of 21 the RVR Log No. 7238922, including the disciplinary hearing results. (ECF No. 59-2.) 22 In his verified first amended complaint, plaintiff alleges: 23 Kurgan handcuffed plaintiff against the unit six wall while plaintiff was in the medication line. Defendant Kurgan then threw plaintiff to 24 the floor, and whispered in plaintiff’s ear that camera isn’t working while kneeing plaintiff a few times. Kurgan then pressed his alarm 25 for correctional officers to respond. When defendant Jones arrived, Kurgan told Jones that plaintiff had assaulted Kurgan by kicking 26 Kurgan while plaintiff was in the medication line. Defendant Jones used excessive force by kneeing plaintiff in the middle of his back, 27 stopping plaintiff’s breathing, and causing pain and pressure, then punched plaintiff a few times. Then defendant Kurgan lifted plaintiff 28 up to his feet while Jones kicked plaintiff in his belly. 1 (ECF No. 17 at 3-4.)1 Although plaintiff conceded in his deposition that he “probably” made an 2 offensive statement to Kurgan, plaintiff maintained that Kurgan “threw” plaintiff to the floor, 3 “slammed [plaintiff] down,” based on plaintiff’s offensive comment to Kurgan; Kurgan “was mad 4 thinking I was talking about the authority figures in here when I was talking about what’s on 5 TV.” (Pl.’s Dep. at 48:23-25; 50:16; 51:6; 12-19; 52:4-11; 54:5-19.) 6 IV. GOVERNING STANDARDS 7 A. Favorable Termination Rule 8 “[A] state prisoner’s claim for damages is not cognizable under

if ‘a 9 judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or 10 sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been 11 invalidated.” Edwards v. Balisok,

(1997) (quoting Heck v. Humphrey, 512

, 487 (1994). In Edwards, the Supreme Court applied Heck to prison disciplinary 13 proceedings. See

“[I]f the district court determines that the plaintiff’s action, even if 14 successful, will not demonstrate the invalidity of any outstanding criminal judgment against the 15 plaintiff, the action should be allowed to proceed.” Heck, 512 U.S. at 487 (emphasis in original). 16 “In evaluating whether claims are barred by Heck, an important touchstone is whether a § 1983 17 plaintiff could prevail only by negating ‘an element of the offense of which he has been 18 convicted.’ ” Cunningham v. Gates,

(9th Cir. 2002) (quoting Heck, 512 19 U.S. at 487 n.6). A § 1983 claim that will not necessarily invalidate the underlying disciplinary 20 action may proceed. See Muhammad v. Close,

(2004) (discussing “the 21 mistaken view expressed in Circuit precedent that Heck applies categorically to all suits 22 challenging prison disciplinary proceedings”). 23 “To decide whether success on a section 1983 claim would necessarily imply the 24 invalidity of a conviction, [the court] must determine which acts formed the basis for the 25 conviction.” Lemos v. County of Sonoma,

(9th Cir. 2022) (emphasis in 26 1 “A [p]laintiff’s verified complaint may be considered as an affidavit in opposition to summary 27 judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith,

, 1132 n.14 (9th Cir. 2000). 28 1 original). “The court cannot conclude generally that the plaintiff’s conviction was based on the 2 entire incident as a whole, such that a finding of excessive force at any time during the incident 3 would necessarily conflict with the conviction.” Martell v. Cole,

(9th Cir. 4 2024). It is the defendants’ burden to establish the basis for the conviction. See Sanford v. 5 Motts,

(9th Cir. 2001) (“It was the burden of the defendants to establish their 6 defense by showing what the basis was.”). 7 B. Legal Standards Governing Eighth Amendment Excessive Force Claims 8 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 9 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 10 Farmer v. Brennan,

(1994). “[W]henever prison officials stand accused of 11 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is 12 . . . whether force was applied in a good-faith effort to maintain or restore discipline, or 13 maliciously and sadistically to cause harm.” Hudson v. McMillian,

(1992). 14 When determining whether the force was excessive, the court looks to the “extent of 15 injury suffered by an inmate . . ., the need for application of force, the relationship between that 16 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ 17 and ‘any efforts made to temper the severity of a forceful response.’”

at 7 (quoting Whitley v. 18 Albers,

(1986)). While de minimis uses of physical force generally do not 19 implicate the Eighth Amendment, significant injury need not be evident in the context of an 20 excessive force claim, because “[w]hen prison officials maliciously and sadistically use force to 21 cause harm, contemporary standards of decency always are violated.” Id. at 9. 22 V. THE PARTIES’ ARGUMENTS 23 Defendants argue that plaintiff’s excessive force claims necessarily imply the invalidity of 24 the prison disciplinary proceedings because plaintiff’s factual claims are inseparable from the 25 facts underlying the RVR decision. (ECF No. 59-1 at 6.) Defendants contend that plaintiff’s 26 assertion that he remained compliant throughout the incident are at odds with Kurgan’s statement 27 in the RVR that Kurgan only applied force immediately after plaintiff refused the order to get 28 down on the ground and physically resisted, and only stopped resisting after Kurgan applied the 1 force described in the RVR. (Id.) In addition, while plaintiff contends defendant Jones 2 responded to the alarm and assaulted plaintiff while he was handcuffed on the ground, defendants 3 point out that the RVR states that Officer Earnshaw (not Jones) responded to the alarm. (Id.) 4 Defendants argue that “[b]ecause plaintiff’s and defendants’ actions are so closely interrelated 5 and part of a single course of conduct, a finding that Kurgan and Jones used excessive force while 6 plaintiff was not resisting them would necessarily imply the invalidity of the RVR finding that 7 plaintiff was guilty of willfully resisting and committing battery on a peace officer during the 8 performance of his duties.” (ECF No. 59-1 at 6 (citing Blair v. Trimble,

, at 9 *12 (S.D. Cal. May 11, 2016)). Defendants also rely on Muhammad v. Garrett,

(E.D. Cal. 2014), aff’d sub nom. Muhammad v. City of Bakersfield,

982 (9th Cir. 2016). Other than defense counsel’s declaration, defendants provided no 12 declaration in support of their motion for summary judgment. 13 In his unverified opposition, plaintiff does not address the application of Heck, or provide 14 any evidence that the RVR guilty finding has been overturned or expunged, but reiterates his 15 claim that defendant Kurgan used excessive force on plaintiff on November 5, 2022 by throwing 16 plaintiff to the ground and punching and kicking him. (ECF No. 66 at 1.) Plaintiff also requests 17 that the Court review all camera footage to show plaintiff is telling the truth. (Id.) Plaintiff does 18 not address his claims against defendant Jones, and plaintiff did not provide a declaration. (Id.) 19 In reply, defendants again argue that plaintiff’s disciplinary conviction for willfully 20 resisting a peace officer is at odds with plaintiff’s claim he did not resist, meaning “there is no 21 spatial or temporal separation between the acts for which plaintiff was convicted,” and his claims 22 are therefore barred by Heck. (ECF No. 67 at 2.) Defendants then conclude that “[it] is 23 undisputed that the facts that form the basis of Plaintiff’s excessive force claims are directly 24 contradicted by his RVR guilty finding for committing battery against Defendant Kurgan.” (Id. at 25 4.) 26 VI. DISCUSSION 27 Initially, the Court observes that defendants argue that plaintiff was found guilty of battery 28 on a police officer (ECF No. 59-1 at 1:24-26, 2:18-19, 7:9), but in addition argue that plaintiff 1 was also found guilty of willfully resisting a peace officer in the performance of his duties (ECF 2 Nos. 59-1 at 4:24-25; 7:1-3; 67 at 2:8-9, 11-13). In Blair and Muhammad, relied on by 3 defendants, both plaintiffs were found guilty of willfully resisting as well as battery or assault. 4 But here, plaintiff was only charged with and found guilty of battery on a peace officer, not 5 willfully resisting a peace officer. (ECF No. 59-2 at 29, 36.) Thus, defendants’ arguments that 6 plaintiff’s resistance during the course of this transaction (ECF No. 59-1 at 6-7; 67 at 2-3) bars 7 plaintiff’s excessive force claims under Heck because plaintiff was found guilty of resisting 8 Kurgan is unavailing. 9 Also, plaintiff’s request that the Court view camera footage from the November 5, 2022 10 incident is denied because plaintiff did not submit any camera footage with his opposition. 11 Turning to the merits of the motion, defendants also argue that because the course of 12 events on November 5, 2022, was one continuous transaction, plaintiff’s excessive force claims 13 are all barred by Heck. This Court disagrees. 14 Plaintiff was found guilty of “Battery on a Peace Officer,” which was a violation of 15 California Code of Regulations, Title 15, § 3005(d)(1). (ECF No. 59-2 at 34.) Section 16 3005(d)(1) states, 17 Inmates shall not willfully commit or assist another person in the commission of an assault or battery to any person or persons, nor 18 attempt or threaten the use of force or violence upon another person. 19

(d)(1). In California, battery is defined as “any willful and 20 unlawful use of force or violence upon the person of another.”

. “It thus 21 has two stated elements: (1) a use of ‘force or violence’ that is (2) ‘willful and unlawful.’ ” 22 People v. Miranda,

, 173 (2021). Therefore, the hearing officer considered 23 the following elements in deciding whether plaintiff violated § 3005(d)(1), as documented in the 24 RVR: plaintiff willfully and unlawfully used force or violence upon a peace officer. 25 Based on such elements, the guilty finding was based on the following facts, which the 26 hearing officer recounted in the RVR: plaintiff, while standing at the wall with his hands behind 27 his back, “began thrashing his upper body left and right,” then used “his left foot to kick and 28 make contact with [defendant Kurgan’s] right shin.” (ECF No. 59-2 at 34.) According to the 1 Heck bar, plaintiff’s § 1983 claims may not advance any legal theory that, if successful, would 2 necessarily invalidate or contradict any of the foregoing facts. Stated differently, none of the 3 foregoing facts can be presumed to be false for purposes of evaluating plaintiff’s § 1983 claims. 4 Applying the foregoing facts, plaintiff’s excessive force allegations would not necessarily 5 invalidate or contradict the facts supporting the guilty finding that plaintiff committed battery. 6 Even if plaintiff battered defendant Kurgan, plaintiff could pursue the legal theory that the force 7 applied by defendants in response to the battery was excessive and unnecessary and was applied 8 maliciously and sadistically for the purpose of causing harm to plaintiff. The Ninth Circuit has 9 determined that an excessive force claim may not be barred by Heck when a conviction and a 10 § 1983 claim are “based on different actions during ‘one continuous transaction.’” Hooper v. 11 Cnty. of San Diego,

(9th Cir. 2011); see also Sanford,

(“If the 12 officer used excessive force subsequent to the time [the plaintiff] interfered with the officer’s 13 duty, success in her section 1983 claim will not invalidate her conviction. Heck is no bar.”). In 14 other words, “assault of a peace officer and a claim of excessive force are not mutually exclusive 15 because a finding that defendant responded to the assault with excessive force would not negate 16 any of the elements of assault.” Singanonh v. Fine,

, at *4 (E.D. Cal. May 6, 17 2020) (collecting cases), report and recommendation adopted,

(E.D. Cal. Oct. 18 5, 2020). 19 The Court has considered whether defendant Kurgan’s alleged “throwing” of plaintiff to 20 the floor could be viewed as part of one continuous chain of events intertwined with plaintiff’s 21 thrashing at the wall during which plaintiff kicked defendant Kurgan and continued thrashing 22 after. See Blocker v. Solis,

, at *5 (C.D. Cal. Dec. 18, 2023) (finding that 23 Heck barred plaintiff’s § 1983 claim for excessive force because “acts underlying [p]laintiff’s 24 battery conviction and [d]efendants’ alleged acts of excessive force [we]re intertwined and [we]re 25 not separated in time”), adopted by

(C.D. Cal. Mar. 25, 2024). However, 26 according to Kurgan’s statement in the RVR, plaintiff’s kicking of Kurgan occurred while 27 plaintiff was at the wall and before Kurgan ordered plaintiff to get down. (ECF No. 59-2 at 39.) 28 In finding plaintiff guilty of battery, the hearing officer relied on Kurgan’s version of what 1 took place on November 5, 2022, prior to Kurgan’s direct order to plaintiff to get down, with the 2 exception that it noted there were “negative results” from the order to get down, and plaintiff 3 “continued thrashing.” (Id.) Thus, the battery finding did not expressly rely on any actions by 4 plaintiff in response to defendant Kurgan’s subsequent alleged use of force in taking or 5 “throwing” plaintiff to the floor. Kurgan’s statements in the RVR did not include any claim that 6 plaintiff kicked Kurgan at any other point in the November 5, 2022 incident. Therefore, any 7 perceived resistance by plaintiff after he kicked Kurgan’s leg would not necessarily implicate the 8 validity of the battery finding. See Martell,

(Heck did not bar § 1983 action 9 because resisting-arrest conviction could have been based on act of resistance or obstruction 10 different from plaintiff’s conduct during allegedly unlawful use of force). 11 Further, according to the RVR, Kurgan stated that plaintiff stopped resisting once plaintiff 12 was on the ground, and plaintiff alleges that excessive force was used by both defendants Kurgan 13 and Jones after plaintiff was “thrown” to the floor. Thus, although plaintiff was found guilty of 14 battery on Kurgan, Heck would not necessarily bar plaintiff’s claims for the actions of Kurgan 15 and Jones after the battery after plaintiff was on the ground.2 See Kamali v. Stevens,

4593052, at *4-5 (E.D. Cal. Sept. 30, 2022); Brown v. Holland,

, at *1 (N.D. 17 Cal. Mar. 28, 2014) (finding excessive-force claim not Heck-barred because plaintiff who had 18 resisted arrest was already in prone position and was not resisting when defendant “used his full 19 body weight to push down on plaintiff’s back causing plaintiff to experience excruciating pain”). 20 Therefore, the Court declines to find that the determination that plaintiff was guilty of 21 battery on a peace officer is inconsistent with plaintiff’s allegations that defendants used 22 excessive force. It is possible that defendants used excessive force in response to plaintiff’s 23 actions. See Stevenson v. Holland,

, at *15 (E.D. Cal. Jan. 17, 2020) (prisoner 24 was found guilty of “Battery on a Peace Officer with Serious Injury” but court declined to find 25 that prisoner’s excessive force claim was Heck barred because “even if [the prisoner] battered 26 2 Defendants point out that according to the RVR, Officer C. Earnshaw responded to the incident, 27 put handcuffs on plaintiff and “took over . . . physical placement on [plaintiff].” (ECF No. 59-2 at 39.) But defendants did not move for summary judgment based on a theory that defendant 28 Jones was not present during the incident. 1 [the officer] by shouldering and kicking him and fractured [the officer’s] hand, [the prisoner] can 2 advance the cognizable legal theory that the force applied by the prison officers in response was 3 excessive and unnecessary and applied maliciously and sadistically for the purpose of causing 4 harm to [the prisoner].”); Stalling v. Stinson,

, at *3 (E.D. Cal. Aug. 17, 2021) 5 (declining to find excessive force claim was Heck barred because the court found the RVR guilty 6 finding was not inconsistent with the complaint allegations). Thus, defendants’ motion for 7 summary judgment should be denied, because plaintiff’s excessive force claims are not barred by 8 Heck. 9 VII. PLAINTIFF’S DEPOSITION TRANSCRIPT 10 In these findings and recommendations, the Court referred to portions of plaintiff’s 11 September 10, 2024 deposition transcript that were not included in defendants’ excerpts of the 12 deposition submitted in support of their motion for summary judgment. Therefore, the Court 13 orders the Clerk of Court to file, under seal, the electronic transcript of plaintiff’s deposition in 14 the court record. Local Rule 133(j). 15 VIII. CONCLUSION 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request that the Court view camera footage from the November 5, 2022 18 incident (ECF No. 67) is denied. 19 2. The Clerk of the Court is directed to assign a district judge to this case, and shall file 20 the electronic transcript of plaintiff’s deposition under seal. 21 Further, IT IS RECOMMENDED that defendants’ motion for summary judgment (ECF 22 No. 59) be denied, and this action be referred back to the undersigned for further proceedings. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be filed and served within fourteen days after service of the objections. The 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst,

(9th Cir. 1991). 3 4 || Dated: December 8, 2025 5 ( haa Spo CHI SOO KIM 6 UNITED STATES MAGISTRATE JUDGE 7 |) Afcoll1600.msjd.H 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13