Pettit v. Ryan et al

Filing 149

ORDER - IT IS ORDERED: 1. The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 125 ). 2. Defendants' Motion for Summary Judgment (Doc. 125 ) is denied. 3. The Court will seek volunteer co unsel to represent Plaintiff at trial if Plaintiff would like counsel. Within 20 days of this order, Plaintiff shall file a short memorandum stating whether he would like the Court to solicit volunteer counsel to represent him at trial. 4. The Court will set a final pretrial conference after it receives Plaintiff's response on volunteer counsel. (See document for further details). Signed by Judge David G Campbell on 7/24/13. (LAD)

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1 2 JDN WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Ron Zachary Pettit, 9 Plaintiff, 10 vs. 11 12 Charles L. Ryan, et al., 13 Defendants 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-2139-PHX-DGC (JFM) ORDER 15 Plaintiff Ron Zachary Pettit brought this civil rights action under 42 U.S.C. § 1983 16 against multiple Arizona Department of Corrections (ADC) employees (Doc. 1). Before the 17 Court is Defendants’ Motion for Summary Judgment (Doc. 125), which Plaintiff opposes 18 (Doc. 142).1 The Court will deny the motion. 19 I. Background 20 Plaintiff’s claims arose during his confinement at the Arizona State Prison Complex 21 (ASPC)-Eyman, Special Management Unit I in Florence, Arizona (Doc. 1 at 1). He named 22 as Defendants Corrections Officer (CO) Torrey Smith; CO IIs Scott Mueller and Jose Luque; 23 and Sergeant Amy Morrow (id. at 1B-2).2 Plaintiff alleged that in April 2011, during an 24 25 26 27 28 1 The Court issued the Notice required under Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998), informing Plaintiff of his obligation to respond to Defendants’ motion and the requirements under Federal Rule of Civil Procedure 56 (Doc. 128). 2 On screening, the Court dismissed eight other Defendants named in the Complaint (Doc. 12). 1 escort from the shower back to his cell, Smith used excessive force against him in violation 2 of the Eighth Amendment (id. at 3-3B). Plaintiff further alleged that Morrow, Mueller, and 3 Luque watched this use of force but failed to intervene (id.). Defendants now move for summary judgment on the grounds that they did not use 4 5 excessive force and they are entitled to qualified immunity (Doc. 125). 6 II. Summary Judgment 7 A court must grant summary judgment “if the movant shows that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 10 movant bears the initial responsibility of presenting the basis for its motion and identifying 11 those portions of the record, together with affidavits, that it believes demonstrate the absence 12 of a genuine issue of material fact. Celotex, 477 U.S. at 323. 13 If the movant fails to carry its initial burden of production, the nonmovant need not 14 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 15 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 16 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 17 contention is material, i.e., a fact that might affect the outcome of the suit under the 18 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 19 could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 20 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 21 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, 22 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968), but must “come 23 forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. 24 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); 25 see Fed. R. Civ. P. 56(c)(1). 26 At summary judgment, the judge’s function is not to weigh the evidence and 27 determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 28 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence, and draw -2- 1 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 2 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 3 III. Factual Assertions 4 A. Defendants 5 In support of their motion, Defendants submit a separate Statement of Facts (DSOF), 6 to which they attach copies of Defendants’ responses to discovery requests, copies of an 7 Incident Report and officers’ Information Reports, and the declaration of Sergeant Ralph 8 Navarrette (Doc. 126, Exs. B-I & Attachs.). Defendants assert the following relevant facts: 9 10 As of March 26, 2011, ADC issued a High Risk Inmate Notification regarding 11 Plaintiff, which indicated that he had a history of aggression and physical assaults towards 12 staff during escorts (DSOF ¶ 8). Movement of a high-risk inmate required two officers, 13 handcuffs with a lead chain and leg irons, the presence of a video camera and recording of 14 all movements, and a supervisor to oversee the movement (id. ¶ 9). 15 restraints/handcuffs are applied or removed, the inmate must place his hands through the cell- 16 door food-trap door (trap) and keep both hands on the trap until the officer has completed the 17 task (id. ¶ 10). Anytime a high-risk inmate’s trap is opened, two officers must be present (id. 18 ¶ 11). When hand 19 On the date of the incident underlying this lawsuit, April 16, 2011, Plaintiff was 20 designated a high-risk inmate due to his history of assaultive behavior toward staff (id. ¶ 7). 21 Lieutenant Littleton was the shift supervisor that day (id. ¶ 3). Sergeant Morrow was the 22 supervising sergeant assigned to supervise the escort of Plaintiff, and she applied and 23 removed Plaintiff’s leg cuffs (id. ¶¶ 4, 14). CO II Mueller was the videographer at the time 24 of the incident (id. ¶ 12). CO II Luque was responsible for applying and removing Plaintiff’s 25 handcuffs and lead restraint (id.¶ 13). CO II Smith was responsible for Plaintiff’s lead chain 26 (id. ¶ 15). 27 Plaintiff was restrained and escorted from his cell to the showers without incident (id. 28 ¶ 16). When Plaintiff arrived at the shower, he was upset when he had to kneel without any -3- 1 padding for his knees, which he had to do to have his leg cuffs removed (id. ¶ 17). Plaintiff 2 was agitated, yelling, uncooperative, and he made threats towards staff (id.). After his 3 shower, Plaintiff refused to kneel down (id. ¶ 18). He finally complied and allowed Luque 4 to apply leg cuffs and handcuffs with a lead chain (id. ¶ 19). Although Plaintiff was directed 5 to back out of the shower, he turned to exit facing forward, which put at risk all officers’ 6 safety (id. ¶ 20). As Plaintiff walked from the shower to his cell, he constantly pulled at the 7 lead chain held by Smith, and he continued to verbally curse and threaten Defendants, with 8 particular attention to Smith (id. ¶¶ 21-22). 9 When they arrived at Plaintiff’s cell, Plaintiff continued to be uncooperative and 10 refused to kneel in his cell for removal of his leg cuffs (id. ¶ 23). Plaintiff finally consented 11 to kneel to allow removal of the leg cuffs, but then he refused to stand up (id. ¶ 24). After 12 Plaintiff complied and stood up, Defendants shut his cell door; however, Plaintiff tried to pull 13 the lead chain held by Smith (id. ¶ 25). Smith used force to maintain possession of the lead 14 chain and prevent Plaintiff from pulling the chain into his cell (id. ¶ 26). Plaintiff then 15 backed up to the cell door for Luque to uncuff his hands, and he placed his hands through the 16 trap (id. ¶ 27). 17 When the officers were attempting to remove Plaintiff’s hand restraints, Smith gave 18 Plaintiff several verbal directives to place his hands on the trap, but Plaintiff refused to 19 comply (id. ¶ 28). Although his position was proper, Plaintiff’s behavior continued to be 20 aggressive and problematic; he was wiggling, tugging, and pulling on the lead chain, which 21 made it difficult for Luque to remove the handcuffs (id. ¶ 29). As soon as Luque released 22 Plaintiff’s first hand from the handcuffs, Plaintiff attempted to grab Smith’s stab vest (id. 23 ¶ 30). To thwart him, Smith pressed down on Plaintiff’s hand/wrist/arm to secure it against 24 the open trap (DSOF ¶ 31). As soon as Luque released Plaintiff’s second hand from the 25 handcuffs, Plaintiff again attempted to grab Smith’s stab vest (id. ¶ 32). To thwart him, 26 Smith again pressed down on Plaintiff’s hand/wrist/arm to secure it against the open trap (id. 27 ¶ 33). 28 Smith did not pull or yank the lead chain through the trap any more than needed or -4- 1 required, nor did Smith assault Plaintiff, beat Plaintiff’s hands, or throw any punches (id. 2 ¶ 38). In one quick motion, Smith let go of Plaintiff’s hands, Plaintiff pulled his hands into 3 his cell, and Smith quickly closed and secured the cell-door food trap (id. ¶ 34). 4 Mueller relinquished the video recorder and video of the incident to Morrow, and, 5 although Morrow provided the video of the incident to Lieutenant Littleton, her supervisor, 6 the videotape was not preserved (id. ¶¶ 36-37). 7 Later in the day on April 16, 2011, Smith’s supervisor, Sergeant Navarette, 8 interviewed Plaintiff about the incident (id. ¶ 39). Navarette was aware that Morrow had 9 concerns about the incident and about Smith’s behavior during the incident (id. ¶ 40). 10 Morrow wrote an Information Report Supplement about the incident; this report stated that 11 Smith behaved unprofessionally in his interactions with Plaintiff (id. ¶ 50). 12 At Plaintiff’s request, Navarette arranged a meeting between Plaintiff and Smith (id. 13 ¶ 41). Plaintiff apologized to Smith, and Plaintiff and Smith agreed that the situation 14 between them was good (id. ¶¶ 45-46). 15 Navarette concluded that Smith did not use excessive force, and Lieutenant Littleton 16 never wrote an Incident Report about the incident; there were only supplements written by 17 each Defendant (id. ¶ 49). Smith did not give Plaintiff a disciplinary ticket for his 18 uncooperative and aggressive behavior because the escort did not result in any injury to staff 19 or Plaintiff (id. ¶ 56). 20 Later in the day on April 16, 2011, Plaintiff was seen by medical for complaints of 21 wrist and hand pain. Nurse K. Nielsen noted a red mark on the top side of each wrist but no 22 abrasions or open wounds (id. ¶ 57). 23 B. 24 With his opposition memorandum (Doc. 142), Plaintiff submits his own separate 25 Statement of Facts (PSOF), which is supported by copies of his high-risk inmate notification, 26 various April 16, 2011 officer reports and supplemental reports, court documents, grievances, 27 medical records, and the declaration of Lieutenant Littleton (Doc. 143; Doc. 142, Exs. B-K). 28 Plaintiff Plaintiff asserts the following relevant facts: -5- 1 Plaintiff was considered a high-risk inmate, and his high-risk inmate notification 2 required that every movement outside of his cell be recorded. The incident on April 16, 2011 3 was recorded (PSOF ¶ 2). 4 On that date, when Plaintiff exited the shower, leg irons were placed on him and the 5 lead chain was applied to his wrists with the handcuffs (Doc. 142 at 2). When the shower 6 door was opened, Plaintiff turned to walk straight out of the shower, at which point Smith 7 grabbed him by the arm and pushed him roughly into the wall (id.). A verbal exchange 8 began between Smith and Plaintiff (id.). Smith, who was responsible for the lead chain, 9 roughly pulled Plaintiff from the shower with the chain and became more aggressive with 10 the chain as they moved closer to Plaintiff’s cell (id.). Smith exchanged “bad words” with 11 Plaintiff all the way to the front of his cell (id.). Smith began pulling hard on the handcuff 12 part of the lead chain such that it caused Plaintiff harsh pain and elicited more verbal insults 13 from Plaintiff (id.). 14 Plaintiff entered his cell for Morrow to remove the leg irons (id.). Plaintiff disputes 15 Defendants’ assertion that he refused to stand up after removal of the leg cuffs; Plaintiff 16 states that under the applicable procedures, inmates cannot stand until the door of the cell is 17 fully closed (PSOF ¶ 10). Plaintiff also disputes that he refused to place his hands on the trap 18 after he backed up to the cell door; he states that in that position – with his hands cuffed 19 behind him and his back against the cell door – there is no choice but to hold one’s hands out 20 of the trap (id. ¶ 11). 21 Plaintiff slowly backed up to the door, at which point Smith pulled on the chain 22 unnecessarily, so Plaintiff tugged back a little on the chain (Doc. 142 at 2). Plaintiff had both 23 of his hands on the trap (PSOF ¶ 12). Smith then snatched Plaintiff’s wrist through the trap 24 with great force, which forced Plaintiff to turn his body to the right to try to relieve pressure 25 on his wrist and shoulders (Doc. 142 at 2). Smith was yanking the chain up and down 26 constantly, and Plaintiff screamed in pain and asked Morrow to stop Smith’s actions (id.). 27 Morrow and the other officers just watched (id.). 28 When Luque uncuffed Plaintiff’s left wrist, Plaintiff immediately turned his body -6- 1 square to the door and placed his hand on the trap (id.). Plaintiff did not ever reach for Smith 2 or try to grab Smith’s stab vest (PSOF ¶¶ 13-16). Smith did not have to press down 3 Plaintiff’s wrist or hand because Plaintiff was holding the food trap (id. ¶ 14). But Smith was 4 holding down Plaintiff’s right hand so Luque could uncuff it (Doc. 142 at 3). After his right 5 hand was uncuffed, Plaintiff grabbed hold of the food trap with his right hand so that the trap 6 could not be closed (id.). Smith began to try to remove Plaintiff’s grip using his hands; when 7 he could not remove Plaintiff’s grip, he began to twist Plaintiff’s wrist to force Plaintiff’s 8 hand loose (id.). At this point, Morrow began to shake her “o.c.” pepper spray can to spray 9 Plaintiff, but before she deployed the spray can, Smith “blew up” and began to repeatedly 10 beat and pound Plaintiff’s right wrist, arm, and fingers very hard with his closed fist (id.; 11 PSOF ¶ 20). Morrow then physically blocked Smith’s blows with her arm and told Smith 12 to stop (Doc. 142 at 3; PSOF ¶ 20). Plaintiff let go of the trap, and Morrow closed the trap 13 (Doc. 142 at 3). 14 15 Morrow, Luque, and Mueller began to exit the pod, but Smith stayed at Plaintiff’s door to curse Plaintiff out and threaten him and another person (id.). 16 Morrow returned to Plaintiff’s cell later to check on Plaintiff and talk about the 17 incident (id.). Morrow asked Plaintiff to drop it because Smith had already been chewed out 18 for being unprofessional (id.). Plaintiff said he would not drop it and he wanted a nurse to 19 look at his wrist and hands (id.). Nurse Nielsen, who was passing out medications, examined 20 Plaintiff’s wrists, concluded they were damaged and bruised, and gave Plaintiff two pills and 21 left (id.). 22 Later that day, Morrow, Navarette, Mueller, and the video recorder escorted Plaintiff 23 to make a phone call (id.). Navarette asked about the incident, Plaintiff explained that Smith 24 assaulted him because he held the food trap and was verbally disrespectful; Navarette asked 25 Plaintiff to let it go (id.). Plaintiff asked Navarette to get Smith, which he did (id.). Plaintiff 26 and Smith discussed the issue, Smith apologized to Plaintiff, and Plaintiff returned to his cell 27 (id.). When he returned to his cell, Plaintiff began the grievance process, and he filled out 28 a health needs request to be seen in medical (id.). Plaintiff disputes that during his -7- 1 conversation with Smith, he acknowledged that he was verbally abusive and uncooperative 2 during the escort or that he had given Smith a hard time, and he denies that he apologized to 3 Smith (PSOF ¶¶ 21-23). 4 On April 20, 2011, Plaintiff went to medical, at which time Sergeant Reyes of the 5 Special Security Unit spoke to Plaintiff and photographed Plaintiff’s hand; this entire 6 conversation was recorded (Doc. 142 at 4). The photo and investigation report has since 7 been lost (id.). 8 Plaintiff disputes that he was not injured (PSOF ¶ 28). He suffered significant pain, 9 had numerous subsequent doctor visits, had to see a hand specialist at the hospital for a 10 ruptured tendon, and surgery is pending (id. ¶¶ 28-29). 11 VI. Excessive Force Claim Against Smith 12 A. Eighth Amendment Legal Standard 13 Use of excessive force against an inmate violates the inmate’s Eighth Amendment 14 right to be free from cruel unusual punishment. Graham v. Connor, 490 U.S. 386, 393-94 15 (1989). The use of force is constitutional if it is used in a good faith effort to keep or restore 16 discipline; it is unconstitutional if it is used “maliciously and sadistically for the very purpose 17 of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Not “every malevolent 18 touch by a prison guard gives rise to a federal cause of action”; thus, de minimis uses of 19 physical force, provided that use of force is not “repugnant to the conscience of mankind,” 20 do not offend the Constitution. Hudson v. McMillan, 503 U.S. 1, 9-10 (1992). 21 A court considers five factors in determining whether a defendant’s use of force was 22 malicious and sadistic for the purpose of causing harm: (1) the extent of the injury, (2) the 23 need to use the force, (3) the relationship between the need and the amount of force used, 24 (4) the threat “reasonably perceived” by the officials, and (5) “any efforts made to temper the 25 severity” of the force. Id. at 7 (citing Whitley, 475 U.S. at 321). When reviewing these 26 Whitley factors, the court must remember that prison officials “should be accorded 27 wide-ranging deference in the adoption and execution of policies and practices that in their 28 judgment are needed to preserve internal order and discipline and to maintain institutional -8- 1 security.” Whitley, 475 U.S. at 321-22 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). 2 B. Analysis 3 The parties present their opposing arguments on each of the five Whitley factors 4 (Docs. 125, 142).3 The Court will address each factor in turn. In this analysis, where the 5 facts are disputed, Plaintiff’s facts are taken as true. See Anderson, 477 U.S. at 255. 1. Extent of Injury 6 7 The extent of a prisoner’s injury may suggest whether force used could plausibly have 8 been thought necessary in a particular situation. Hudson, 503 U.S. at 7. Although the extent 9 of a prisoner’s injury is relevant in the use of force determination, it is not decisive because 10 a prisoner can state a claim even if he did not suffer a significant injury. See id. at 4; Wilkins 11 v. Gaddy, 559 U.S. 34, 37-38 (2010); Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 12 2000) (the attack need not result in permanent injury). “Otherwise, the Eighth Amendment 13 would permit any physical punishment, no matter how diabolic or inhuman, inflicting less 14 than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9. 15 Defendants assert that the medical record for the day of the incident reflects only a 16 complaint of wrist and hand pain and that at a follow up appointment on April 20, 2011, the 17 record showed possible bruising (Doc. 125 at 7). According to Defendants, Plaintiff was 18 given Ibuprofen, was apparently satisfied with the treatment received, and he did not follow 19 up after the April 20, 2011 appointment (id.). 20 Plaintiff asserts that he sustained serious injuries to his neck, shoulders, arm sockets, 21 upper right arm, wrists, and lower back, and a ruptured tendon in his right finger (Doc. 142 22 at 6). He states that ADC physicians have prescribed him the pain medication Naproxen to 23 help him deal with the pain (id.). Plaintiff submits evidence showing that from the date of 24 the incident to more than a year after the incident, he continually requested treatment and was 25 regularly seen by medical personnel for pain in his hand, wrist, shoulder, and neck (Doc. 142, 26 Ex. D (Doc. 142-4 at 18-19, 24-26, 28-35)). The medical records reflect that in September 27 28 3 Plaintiff filed a sur-reply, which the Court will not consider (Doc. 146). -9- 1 2011, Plaintiff was referred to a hand surgeon (id. (Doc. 142-4 at 21, 27)). He also saw a 2 hand surgeon on April 3, 2012 (id. (Doc. 142-4 at 20, 25)). And Plaintiff avers that he may 3 receive surgery on his hand (Doc. 143, PSOF ¶ 28; see Doc. 142, Ex. K (Doc. 142 at 22)). 4 On this record, Plaintiff’s injuries were not life-threatening, but they were more than 5 insignificant. This first factor weighs in his favor. 2. Need for Force 6 7 The Ninth Circuit has held that “the force which was applied must be balanced against 8 the need for that force: it is the need for force which is at the heart of the [excessive force 9 determination].” Alexander v. City and Cnty. of S.F., 29 F.3d 1355, 1367 (9th Cir. 1994). 10 Defendants contend that Plaintiff’s disobedience suggested that force was required. 11 Specifically, Defendants cite his threatening behavior, his pulling and yanking on the lead 12 chain, and his attempts to grab Smith’s stab vest as handcuffs were released (Doc. 125 at 7). 13 Defendants submit that Plaintiff refused to follow directives, which constituted a challenge 14 to their authority and escalated tensions between the parties (id. at 7-8). Defendants claim 15 that once he was inside his cell, Plaintiff continued to disobey orders directing him to back 16 up to the trap and allow officers to remove his handcuffs, and that Plaintiff then pulled the 17 lead chain into his cell thereby heightening the safety risk to the officers (id. at 8). 18 Defendants maintain that Smith used measured force to retrieve the lead chain by pulling it 19 back through the trap (id.). They conclude that given these facts, Defendants reasonably 20 perceived some threat from Plaintiff and accurately assessed the force required to combat that 21 threat (id.). 22 Plaintiff concedes that he was verbally disrespectful to Smith, but avers that he never 23 tried to grab Smith’s stab vest. Rather, he held on to the food trap and made no threatening 24 moves towards staff (Doc. 143; PSOF ¶ 13; Doc. 142 at 7).4 He further states that in 25 4 26 27 28 Plaintiff points to various documents in the record to argue that Defendants have provided conflicting stories regarding what actually happened in his cell (Doc. 142 at 6-7; see Doc. 143, PSOF ¶¶ 16-20, 24-26). At the summary judgment stage, the Court may not make credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255. Therefore, as mentioned, where the facts are disputed, the Court applies Plaintiff’s facts - 10 - 1 response to Smith pulling and yanking on the chain, Plaintiff gave one small tug on the chain, 2 and Smith responded by pulling Plaintiff’s arms through he trap with great force (id.). 3 Plaintiff claims that Smith then began to beat Plaintiff’s right hand, wrist, and arm with a 4 closed fist until Morrow stopped him (Doc. 142 at 3). Plaintiff notes that he received no 5 disciplinary report for his alleged behavior, yet Smith was written up for his behavior (id. at 6 7). Plaintiff relies on Morrow’s Information Report, dated April 16, 2011, in which she 7 wrote that after Luque removed Plaintiff’s right handcuff, “CO II Smith hit [Plaintiff’s] arm 8 with his closed hand. I was ready to activate the o.c. spray out. [I] told Smith to stop . . . I 9 went straight to Lt. Littleton about the situation. He advised me to do a PACE entry for 10 being unprofessional” (Doc. 143, PSOF ¶ 19; Doc. 126, Ex. I, Attach. 1 (Doc. 126- 2 at 42)).5 11 Plaintiff states that Morrow subsequently wrote a PACE entry for Smith’s conduct; however, 12 this PACE entry, along with the videotape, which would support his claim, have both 13 disappeared (Doc. 142 at 6-7).6 14 The crux of Plaintiff’s excessive-force claim is Smith’s alleged yanking of the lead 15 chain to pull Plaintiff’s arms through the trap and his beating of Plaintiff’s right hand, wrist, 16 and arm. Plaintiff concedes that he was holding the food trap at that point, which prevented 17 Defendants from closing the trap. Plaintiff further concedes that Morrow would have been 18 justified in using pepper spray to get him to release his grip on the trap and that she was 19 about to deploy her pepper spray can (id. at 3). The Ninth Circuit has ruled that the use of 20 force may be necessary “if a prisoner refuses after adequate warning to move from a cell or 21 upon other provocation presenting a reasonable possibility that slight force will be required.” 22 Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979). Further, “[w]hether in the context of 23 in the excessive-force analysis. See id. 24 5 25 Defendants explain that a PACE entry is a personnel record (Doc. 145 at 3). 6 26 27 28 Because the record before the Court is sufficient to demonstrate material factual disputes precluding summary judgment, any adverse inference stemming from Defendants’ failure to preserve the videotape and PACE entry need not be addressed at this time. If necessary, the parties may raise spoliation-of-evidence issues in pre-trial motions. - 11 - 1 a prison-wide disturbance or an individual confrontation between an officer and prisoner, 2 corrections officers often must act immediately and emphatically to defuse a potentially 3 explosive situation,” and they must make decisions in haste and under pressure. Jordan v. 4 Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993). 5 Although Defendants vehemently argue that Plaintiff disobeyed orders and threatened 6 them (Doc. 125 at 7-8), they do not dispute that he received no disciplinary report or any type 7 of sanction for his alleged behavior. Nor do Defendants dispute that a PACE entry regarding 8 Smith’s conduct was written by Morrow and that this PACE entry was not preserved (Doc. 9 145 at 3, 5). The inference from this evidence—which must be drawn in Plaintiff’s favor—is 10 that Smith’s conduct, not Plaintiff’s, was culpable. 11 Nonetheless, Plaintiff gave a tug on the lead chain and refused to release his grip from 12 the trap when officers needed to close it. These actions—with the cell door closed—may not 13 have posed a significant danger to other inmates or Defendants, but given this recalcitrance, 14 some force may have been necessary to keep Plaintiff’s hands to the food trap and some 15 force was required to get him to release his grip on the trap. Therefore, this factor tips 16 slightly in Smith’s favor. 17 3. Relationship Between Need for Force and Force Used 18 Prison officials may use force only in proportion to the need in each situation. See 19 Spain, 600 F.2d at 195 (“[t]he infliction of pain and the danger of serious harm may be 20 necessary if there is a threat of an equal or greater harm to others, as is reflected in the 21 doctrine of self defense . . . . Inherent in the doctrine of self defense is the concept of 22 proportion”). Therefore, prison officials “must balance the need ‘to maintain or restore 23 discipline’ through force against the risk of injury to inmates.” Hudson, 503 U.S. at 6. But 24 the infliction of pain during the use of force “does not amount to cruel and unusual 25 punishment simply because it may appear in retrospect that the degree of force authorized 26 or applied for security purposes was unreasonable, and hence unnecessary in the strict 27 sense.” Whitley, 475 U.S. at 319. Thus, as argued by Defendants, a simple overreaction by 28 an officer is insufficient to establish an Eighth Amendment violation (Doc. 125 at 9). - 12 - 1 Defendants contend that there is no evidence that Smith used force maliciously and 2 sadistically for the purpose of causing harm (id.). They assert that Smith used de minimis 3 force to retain control of the lead chain, to keep Plaintiff from grabbing him through the trap, 4 and to restrain Plaintiff’s arms so that Luque could remove the handcuffs (id.). 5 Plaintiff asserts that Smith’s actions were more than an overreaction. He submits that 6 Smith lost control when he started beating on Plaintiff’s hand and arm—actions documented 7 in Morrow’s Information Report, cited above (Doc. 142 at 7;Doc. 126, Ex. I, Attach. 1 8 (Doc. 126-2 at 42)). Plaintiff argues that Morrow would not have written this report or 9 subsequently written up a PACE entry for Smith’s behavior in response to a simple de 10 minimis use of force (Doc. 142 at 8). 11 Plaintiff further argues that had Smith’s actions simply been an overreaction, Plaintiff 12 would not have suffered the extent of injury that he did, and he reasserts that he continues 13 to take pain medication for his neck and other areas, has seen a hand surgeon, and may need 14 surgery (Doc. 142 at 8). 15 Lastly, in response to Defendants’ claim that there is no evidence Smith used 16 excessive force, Plaintiff states that there would have been such evidence had Littleton 17 followed ADC policy and preserved the videotape of the incident (id.). 18 Construing the facts in Plaintiff’s favor, Smith did not need to use the amount of force 19 he did when pulling the lead chain, which was so hard that Plaintiff screamed in pain, 20 because Plaintiff’s hands were already out the food trap (Doc. 143, PSOF ¶ 11; Doc. 142 at 21 2). Further, Smith did not need to use any force to keep Plaintiff from grabbing him though 22 the trap because Plaintiff did not try to grab Smith, nor did Smith need to use any force to 23 restrain Plaintiff’s arms for removal of the cuffs because Plaintiff was already gripping the 24 trap (see Doc. 125 at 9). Defendants do not address Smith’s actions after the cuffs were 25 removed when, according to Plaintiff, he was gripping the trap and Smith beat Plaintiff’s 26 hand and arm with a close fist until stopped by Morrow (see id.). As stated, this alleged 27 conduct by Smith is part of the crux of Plaintiff’s excessive-force claim. 28 Given the above facts and Defendants’ failure to present any argument regarding the - 13 - 1 relationship between the need for force after Plaintiff’s cuffs were removed and the force 2 Smith used, this third factor weighs in favor of Plaintiff. 3 4. Threat Perceived 4 The fourth Whitley factor considers “the extent of the threat to the safety of staff and 5 inmates, as reasonably perceived by the responsible officials on the basis of the facts known 6 to them.” 475 U.S. at 321. In weighing this factor, courts should be mindful that “in making 7 and carrying out decisions involving the use of force to restore order in the face of a prison 8 disturbance, prison officials undoubtedly must take into account the very real threats the 9 unrest presents to inmates and prison officials alike, in addition to the possible harms to 10 inmates against whom force might be used.” Id. at 320. 11 Defendants argue that the Court should rule as a matter of law that there was no 12 excessive force because Plaintiff’s disobedience, threats, and attempted assaults on Smith 13 entitled Defendants to perceive Plaintiff as a threat (id. at 10). Defendants assert that 14 Plaintiff’s yanking of the lead chain and his attempts to grab Smith’s stab vest constituted 15 objective threats (id.). Defendants add that they were aware that Plaintiff was designated as 16 a high-risk inmate due to previous assaults on staff (id.). 17 Plaintiff contends that he posed no threat to staff or other inmates, particularly given 18 that he was locked in a cell by himself (Doc. 142 at 8-9). He states that he has been assaulted 19 by staff many times, but never before has the offending officer been penalized, and the one 20 time an assault is caught on tape, the tape disappears (id. at 9). 21 There is no sworn statement from Smith indicating whether he felt threatened or 22 perceived any risk at the time Plaintiff alleges he used excessive force. The Court agrees, 23 however, that Plaintiff’s status as a high-risk inmate, standing alone, made it reasonable for 24 Smith and the other officers to conclude that Plaintiff presented a risk of potential violence 25 towards others. Also, Plaintiff gave a small tug on the lead chain prior to the cell door 26 closing, which arguably would present a threat to safety. But after the cell door was closed, 27 pursuant to Plaintiff’s facts, he did not attempt to grab Smith’s stab vest, and upon removal 28 of the cuffs, Plaintiff remained holding on to the trap with his right hand (Doc. 142 at 2-3; - 14 - 1 Doc. 143, PSOF ¶ 13). In addition, as discussed, Plaintiff received no disciplinary report for 2 any alleged misconduct or disobedience. These facts lead to the inference that Plaintiff’s 3 behavior was not particularly disorderly or dangerous. 4 In short, the Court finds that while the balance on this factor is close, it was reasonable 5 for Smith to perceive some threat posed by Plaintiff, at least when Plaintiff tugged on the 6 lead chain. This factor tips marginally in Smith’s favor. 7 5. Efforts to Temper Force 8 In analyzing the last factor, the Court must keep in mind that the Eighth Amendment 9 does not prohibit uses of force that appear unreasonable in hindsight, as long as the officers 10 were acting in good faith and for a legitimate end. See Whitley, 75 U.S. at 322. 11 Defendants argue that Plaintiff offers no alterative to the force used that would have 12 produced compliance on his part, and that Plaintiff cannot explain why force was 13 unnecessary (Doc. 125 at 11). Defendants assert that the fact that Plaintiff was not pepper 14 sprayed demonstrates that they tempered their use of force (id.). They also argue that the 15 lack of any injury beyond red marks on Plaintiff’s hands supports that they did not use 16 excessive force (id. at 11-12). 17 Plaintiff responds by arguing that Defendant officers could have prevented the 18 escalating tensions that began when Smith was escorting Plaintiff from the shower, yet no 19 one made any attempt to control the situation (Doc. 142 at 9). Plaintiff asserts that he was 20 never a threat, and he notes that in Morrow’s Information Report, she did not state that 21 Plaintiff was trying to harm staff; rather, she reported that he was just holding the food trap 22 (id.). Plaintiff suggests that if Smith had allowed Morrow to deploy her pepper spray, as she 23 was prepared to do, Plaintiff would have no complaint, but instead, Smith beat Plaintiff and 24 caused Plaintiff’s injuries (id. at 9-11). 25 Defendants argue that there was no way to temper the force Smith used (see Doc. 125 26 at 11). Verbal orders given prior to any use of force would be one example of an effort to 27 temper force, and Defendants assert that Smith gave Plaintiff verbal directives to place his 28 hands on the trap (Doc. 126, DSOF ¶ 28). But Plaintiff disputes that he refused to comply - 15 - 1 with verbal directives to place his hands on the trap (Doc. 143, PSOF ¶¶ 11-12). The parties 2 also dispute whether using pepper spray would have been an escalation in force or an effort 3 to temper force prior to hitting Plaintiff’s hand and arm. Plaintiff’s allegations and medical 4 records document that he suffered and continues to suffer pain sufficient to warrant 5 prescription pain medication and his injuries have required specialist care. Viewing the facts 6 in Plaintiff’s favor, these injuries appear more severe than the temporary effects he would 7 have incurred from pepper spray. Consequently, this final factor tips in Plaintiff’s favor. 6. Conclusion 8 9 Because excessive force cases often turn on credibility determinations, the excessive 10 force inquiry often “requires a jury to sift through disputed factual contentions, and to draw 11 inferences therefrom[.]” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (quoting 12 Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). As a result, “summary judgment or 13 judgment as a matter of law in excessive force cases should be granted sparingly.” Id. For 14 an excessive force case to go to the jury, the evidence must support “a reliable inference of 15 wantonness in the infliction of pain.” Whitley, 475 U.S. at 322. Here, with three out of the 16 five Whitley factors weighing in Plaintiff’s favor, there is a material factual dispute whether 17 Smith’s conduct constituted “obduracy and wantonness.” See id. at 319. Summary judgment 18 as to the excessive-force claim against Smith will therefore be denied. 19 VII. Failure-to-Intervene Claim Against Luque, Morrow, and Mueller 20 “[A] prison official can violate a prisoner’s Eighth Amendment rights by failing to 21 intervene” to prevent a violation by someone else. Robins v. Meecham, 60 F.3d 1436, 1442 22 (9th Cir. 1995). A defendant-officer may be held liable for failing to intervene when he had 23 enough time to observe what was happening and to intervene and prevent or curtail the 24 violation, but failed to do so. See Lanier v. City of Fresno, 2010 WL 5113799, at *6 (E.D. 25 Cal. Dec. 8, 2010) (citations omitted). 26 Defendants do not present any argument addressing Luque, Morrow, and Mueller’s 27 alleged failure to intervene to prevent the alleged excessive force by Smith. The request for 28 summary judgment for these three Defendants is based on the excessive force arguments - 16 - 1 addressed above. The Court has determined that there exist genuine issues of material fact 2 precluding summary judgment for Smith. Absent any specific argument that Luque, 3 Morrow, or Mueller are not liable for failure to intervene, summary judgment in their behalf 4 is not appropriate. See Greene v. Solano County Jail, 513 F.3d 982, 990 (9th Cir. 2008) 5 (finding that movant did not meet initial summary judgment burden on § 1983 claim where 6 no argument on this claim was raised in the motion). 7 VIII. Qualified Immunity 8 When deciding if qualified immunity applies, the Court must determine: (1) whether 9 the facts alleged show that the defendants’ conduct violated a constitutional right; and 10 (2) whether that right was clearly established at the time of the violation. Pearson v. 11 Callahan, 555 U.S. 223, 230-32, 235-36 (2009) (courts may address either prong first 12 depending on the circumstances in the particular case). 13 In the opening paragraph of their motion for summary judgment, Defendants assert 14 that they are entitled to qualified immunity, but within their motion they present no argument 15 regarding qualified immunity (see Doc. 125). To the extent that Defendants assert qualified 16 immunity based on the first prong, the Court has already determined that disputed facts, 17 viewed in Plaintiff’s favor, create a triable issue of fact regarding whether Defendants 18 violated Plaintiff’s Eighth Amendment rights. As to the second prong, the law on excessive 19 force under the Eighth Amendment was clearly established at the time Plaintiff’s claim arose. 20 See Whitley, 475 U.S. at 320-21 (use of force violates Eighth Amendment if applied 21 maliciously and sadistically for purpose of causing harm); see also Covington v. Fairman, 22 123 Fed. App’x 738, 741 (9th Cir. 2004) (“[i]n September 1998 it was clearly established 23 that inmates were protected from wanton beatings that exceeded correctional officers’ 24 good-faith efforts to address a violation of prison rules”). Accordingly, summary judgment 25 based on qualified immunity will be denied. 26 IT IS ORDERED: 27 1. 28 The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 125). - 17 - 1 2. Defendants’ Motion for Summary Judgment (Doc. 125) is denied. 2 3. The Court will seek volunteer counsel to represent Plaintiff at trial if Plaintiff 3 would like counsel. Within 20 days of this order, Plaintiff shall file a short 4 memorandum stating whether he would like the Court to solicit volunteer 5 counsel to represent him at trial. 6 7 8 4. The Court will set a final pretrial conference after it receives Plaintiff’s response on volunteer counsel. DATED this 24th day of July, 2013. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -

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