Ruben Odell Boulware v. Green Wall Gang, Et Al.

Filing 65

ORDER signed by District Judge Roslyn O. Silver on 3/29/11. Defendants' Motion for Summary Judgment (Doc. 54) is GRANTED; Entry of Default against Defendant Armstrong (Doc. 51) is VACATED; Plaintiff's motions for default judgment (Docs. 45 and 49) are DENIED. CASE CLOSED.(Verduzco, M)

(PC) Ruben Odell Boulware v. Green Wall Gang, Et Al.

Doc. 65

1 2 3 4 5 6 7 8 9 10 11 12 D. Ervin, Jr., et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the reasons below, Defendants' Motion for Summary Judgment (Doc. 54) will be granted, and Plaintiff's motions for default judgment (Docs. 45 and 49) will be denied. BACKGROUND Plaintiff is a state prisoner at Folsom State Prison ("Folsom" or "FSP"). (Docs. 20 and 21). Plaintiff brings this action against Folsom prison officers for retaliation, excessive force and an illegal search. The following facts are undisputed unless otherwise indicated. Plaintiff was a member of the Mens Advisory Council ("MAC") at Folsom. (Doc. 60, at Ex. 4). On January 18, 2005, Plaintiff was temporarily suspended from the MAC for disobeying a direct order, as reported in Log Number 305-01-035. (Doc. 60, at Ex. 4). On February 24, 2005, Plaintiff was removed from the MAC. (Doc. 60, at Ex. 4). Plaintiff filed numerous inmate grievances at Folsom. (Docs. 54 and 60). Those grievances included, among others: Log #FSP-04-1376, filed September 5, 2004, challenging the maximum number of inmates allowed in the yard and the use of "mini yards"; and, Log vs. Ruben Odell Boulware, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV-05-01565-ROS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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#FSP-05-00417, filed on February 5, 2005, complaining about racial disparities and inmate job assignments. (Docs. 54-2 and 60, at ¶¶ 1, 8).1 Plaintiff wrote letters on January 30 and February 8, 2005 to the Warden and other state officials complaining of retaliation. (Id. at ¶ 7). Plaintiff contends his correspondence and grievance activity were chilled when he was removed from the MAC. (Id. at ¶ 15). Plaintiff, however, continued to file inmate grievances following each of his disciplinary charges. (Id. at ¶ 17). RVR #305-01-035 On January 18, 2005, Folsom had limited staff due to memorial services for a correctional officer and was on a modified program permitting only limited inmate movement . (Docs. 54-2 and 60, at ¶ 22).2 Officer Haworth3 was in the process of securing the unit as Folsom employees returned to work from the memorial service. (Id. at ¶ 24). Plaintiff asserts he was authorized to be out of his cell, and Defendants assert he was not authorized to be out of his cell. (Id. at ¶ 24). Officer Haworth instructed Plaintiff to return to his cell. (Id. at ¶ 26). Plaintiff was argumentative and continually talked over officer Haworth and disregarded her authority as she attempted to order him back to his cell. (Id. at ¶ 27). Plaintiff stated he was out of his cell because he was a MAC representative seeking to talk to the sergeant about an issue regarding third watch failing to complete showers on

The institutional responses to these grievances were made by Correctional Lieutenant Langford and Warden Knowles, and Correctional Counselor Heinz and Warden Shepherd, respectively. (Id. at ¶¶ 3-4, 9-10). Langford, Knowles, Heinz and Shepherd are not parties to this action. Plaintiff does not allege any Defendants were aware of these grievances or appeals, and the Defendants deny being aware of these grievances and appeals. (Id. at ¶¶ 5-6, 9-14).
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Defendants assert Folsom was on lock down. (Id.).

The Court's docket shows Defendant "Haworth," as named in the Complaint and First Amended Complaint, but certain briefing refers to this Defendant as "Hayworth." The Court will use "Haworth" because it appears on the docket. There is no indication "Haworth" and "Hayworth" are different people, but instead a typographical error by Plaintiff or Defendants. -2-

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the previous night. (Id. at ¶ 28). However, Sergeant Olvera indicated Plaintiff did not talk with him about MAC issues, and the activities log from the prior night showed the shower program had been completed. (Id. at ¶ 29). Plaintiff violated Officer Haworth's direct order to return to his cell. (Id. at ¶ 34). Acting as the hearing officer in RVR #305-01-035, Lieutenant Clayton found the evidence supported the finding of Guilty of Disobeying a Direct Order but chose to dismiss the charge and recorded the event. (Id. at ¶ 40). In so doing, Lieutenant Clayton considered Plaintiff was told to lock up and did not comply but also considered Plaintiff may have been attempting to conduct MAC business. AVR #305-02-003 On January 31, 2005, Officer Shambre observed Plaintiff out of bounds - i.e. in an area he was not permitted. (Id. at ¶ 47). Plaintiff contends he was permitted in this area because he was conducting MAC business. (Id.). Plaintiff returned to his cell. (Id. at ¶ 50). Plaintiff refused to attend his administrative hearing and was found guilty of being out of bounds in AVR #305-02-003. (Id. at ¶¶ 44, 52-53). RVR #305-02-028 On February 13, 2005, Officer Ervin instructed Plaintiff certain clothing worn by Plaintiff was not allowed in the shower area. (Id. at ¶ 66). Defendants claim the policy allows only one T-shirt, one pair of underwear, and one pair of shoes. (Id. at 68). Plaintiff replied he was authorized to wear shorts. (Id. at ¶¶ 67-68). Officer Ervin instructed Plaintiff to walk back to the first tier. (Id. at ¶ 71). Defendants assert Plaintiff made several inflammatory remarks to Officer Ervin, which Plaintiff denies. (Id. at ¶ 72).4 When they reached the first tier podium, Officer Ervin instructed Plaintiff to turn around and face the wall for a clothed body search. (Id. at ¶ 73). The parties have different versions of what happened next. Plaintiff alleges the order for a clothed body search was after Plaintiff gave Officer Ervin a memo stating Plaintiff could wear shorts. (Id.) As Defendants assert Plaintiff made the following remarks to Officer Ervin: "You're harassing me, you baby ass watcher. You're just part of the Aryan Nation harassing black people." (Id. at ¶ 72). -34

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Officer Ervin conducted the clothed body search, Plaintiff asked Officer Ervin whether he was gay and if he felt "like a man." (Id. at ¶ 74). Officer Ervin instructed Plaintiff to turn around and Sergeant Dutton ordered Plaintiff to submit to being handcuffed. (Id. at ¶P 75, 80-81). As Plaintiff started to comply, officer Ervin placed his right hand on Plaintiff's right shoulder and "slammed" him against the shower panel door. (Id. at ¶¶ 80-83). Plaintiff yelled "excessive force!" (Id. at ¶¶ 84-87). Plaintiff concedes his injuries were no more serious than bruises and soreness to his left shoulder and left thumb. (Doc. 21). Defendants allege during the clothed body search Plaintiff told Officer Ervin, "You're a fag. You like what you feel? You like that? You like touching black men?" (Doc. 54-2 and 60, at ¶ 74). Plaintiff made obscene comments to Officer Ervin, pulled out his penis and disobeyed orders to turn around. (Id. at ¶¶ 75-79). Officers handcuffed Plaintiff, who yelled, "Excessive Force! You guys see that? Write it down!" (Id. at ¶ 85, 87). Officer McNeal escorted Plaintiff away. (Id. at ¶ 89).5 Officer Ervin issued RVR #305-02-028 to Plaintiff for behavior that could lead to violence. (Id. at ¶ 57).6 Officer Clayton found Plaintiff guilty of behavior that could lead to violence because he refused an officer's order, made inciteful statements, engaged in disruptive behavior and was confrontational with an officer. (Id. at ¶ 90). On February 13, 2005, Plaintiff was placed in administrative segregation by Lieutenant Cox for his inciteful behavior. (Id. at ¶ 91). None of the Defendants were involved in the decision to place Plaintiff in segregation. (Id. at ¶ 97). RVR #105-04-120 On April 23, 2005, Officer Braziel was monitoring inmates to the yard. (Id. at ¶ 102). When Plaintiff approached, the yard was capped, meaning the maximum number of inmates

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Defendants deny the use of any force. (Doc. 54-2 and 60, at ¶ 140).

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Defendants assert Sergeant Dutton witnessed Plaintiff's behavior, and Plaintiff asserts Sergeant Dutton only saw a portion of the incident. (Id. at ¶ 58). Dutton submitted a supplemental report and was the reviewing supervisor. (Id. at ¶¶ 59-60). -4-

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that were allowed in the yard had been reached. (Id. at ¶¶ 103, 104). Plaintiff wanted to attend a religious service but had a yard bag with him. (Id. at ¶ 107). Officer Braziel informed Plaintiff he would have to return his yard bag to his cell and could only bring his church items with him. (Id. at ¶ 110). A subsequent search of the yard bag found it contained legal work but did not contain anything for a religious ceremony. (Id. at ¶¶ 112, 113). Defendants assert Plaintiff yelled, "If you didn't have that gun coverage, you would be talking to me differently." (Id. at ¶ 116).7 Plaintiff denies this. (Id.). Officer Braziel was the only staff present, and the area was filled with 20-25 inmates. (Id. at ¶¶ 119, 120). Officer Braziel felt threatened due to Plaintiff's demeanor (Id. at ¶¶ 117, 118), but Plaintiff denies he threatened Officer Braziel. (Id.). Officer Braziel issued RVR #105-04-120 because: he perceived Plaintiff's statement as a direct threat; Plaintiff was aggressive and attempting to intimidate him; Plaintiff demonstrated blatant disregarded for his authority; Plaintiff was uncooperative; and Plaintiff was trying to manipulate the system to get into the yard at a time when he was not permitted on the yard. (Id. at ¶ 121). After the alleged threat to Officer Braziel on April 23, 2005, Plaintiff was searched and placed in restraints. (Id. at ¶ 154). Plaintiff was escorted to the Custody Complex by Sergeant Hannaford and Officer Holman, neither of whom are parties to this action. (Id. at ¶¶ 155, 156). Plaintiff alleges Sergeant Hannaford and Officer Holman placed Plaintiff in an "outdoor cage," forced him to strip down naked in the rain, and subjected him to a strip search. (Doc. 21). Officer Braziel did not participate in this escort, and there is no evidence demonstrating Officer Braziel personally participated in placing Plaintiff in an outdoor cage on April 23, 2005. (Doc. 54-2, at ¶¶ 157-160). April 24, 2005 Denial of Access to Religious Services The April 24, 2005 events were similar to the April 23, 2005 events. Plaintiff sought to enter the yard with a yard bag, but the yard was capped. Plaintiff attempted to attend a

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See also (Id. at ¶ 125). -5-

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religious service but was told he could not take his yard bag. Plaintiff was not permitted to take a yard bag with non-religious content to a religious ceremony. (Id. at ¶¶ 125-132). April 27, 2005 Administrative Segregation On April 27, 2005, Plaintiff was placed in administrative segregation by Lieutenant Jones for threatening staff. This was based on Plaintiff's conduct during his attempts to enter the yard under the guise of going to a religious ceremony. (Id. at ¶¶ 135-140). Plaintiff asserts he never threatened an officer. (Id.). Procedural Background Plaintiff's First Amended Complaint ("FAC") alleged four causes of action pursuant to 42 U.S.C. § 1983. (Doc. 21). The Court dismissed Count One without prejudice. (Doc. 23). The remaining counts are: Count Two for retaliation against Defendants Armstrong, Braziel, Clayton, Dutton, Ervin, Haworth, Howell, Manuel, McNeal and Shambre; Count Three for excessive force against Defendant Ervin; and Count Four for an illegal "body search" against Officer Braziel. (Docs. 20 and 23). On August 31, 2010, Defendants Braziel, Clayton, Dutton, Ervin, Haworth, Howell, McNeal and Shambre moved for summary judgment. (Doc. 54). On January 6, 2011, Defendant Armstrong joined in the motion for summary judgment. (Doc. 58). On June 16, 2009, Defendant Manuel waived service (Doc. 28), but has not otherwise appeared in the case. On April 9, 2010, default was entered against Manuel. (Doc. 44). Plaintiff's applications for default judgment against Manuel are pending. (Docs. 45 and 49). ANALYSIS I. Summary Judgment Standard Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). The evidence of the non-moving party is to be believed, and all reasonable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers -6-

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to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). However, if the non-moving party bears the burden of proof at trial, the moving party's summary judgment motion need only highlight the absence of evidence supporting the non-moving party's claims. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 323-25). The burden then shifts to the non-moving party who must produce evidence sustaining a genuine issue of disputed material fact. Id. II. Defendants Are Entitled to Summary Judgment A. Count Two - Retaliation

In order to establish a retaliation claim under 42 U.S.C. § 1983, Plaintiff must show he was retaliated against for exercising a constitutional right and the action was not related to a legitimate penological purpose, such as institutional security. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). It is Plaintiff's burden to show there were no legitimate penological purposes motivating the actions of which he complaints. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). Courts should avoid "excessive judicial involvement in day-to-day prison management" and "afford appropriate deference and flexibility to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt, 65 F.3d at 807 (internal quotation omitted). Preserving institutional order, discipline and security are legitimate penological goals. Barnett, 31 F.3d at 816; Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). Requiring respect for authority is also a legitimate correctional goal. Brodheim v. Cry, 584 F.3d 1262, 1272 (9th Cir. 2009). The safety and security of a penal institution requires inmates obey rules and regulations and respect authority. Cutter v. Wilkenson, 544 U.S. 709, 722-23 (2005); Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986). It is undisputed that prison security is a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 91 (1987).

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Plaintiff alleges Defendants retaliated against him by filing false rules violations and placing him in administrative segregation. Plaintiff alleges the following acts constitute retaliation: filing rules violation reports RVR #305-01-035, AVR #305-02-003, RVR #30502-028, and RVR #105-04-120; administrative segregation placements on February 13 and April 27, 2005; and denial of access to religious services on April 24, 2005. (Doc. 21). However, these acts were in response to Plaintiff disobeying orders, disrespecting officer authority, attempting to circumvent prison rules, inciteful behavior, and making inflammatory remarks. Plaintiff has not met his burden of showing the absence of any legitimate penological goals. Pratt, 65 F.3d at 806. The undisputed facts establish Defendants had a legitimate penological purpose for their rules violation reports. In addition, Plaintiff must establish a specific link between the alleged retaliation and the exercise of a constitutional right. Pratt, 65 F.3d at 807. Plaintiff has not drawn a causal connection between any of his numerous grievances and any of his numerous rules violations. Further, Plaintiff must show his constitutional right was actually chilled by the alleged retaliation. Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000). Plaintiff asserts his constitutional rights were chilled by his removal from MAC. This decision, however, served a legitimate penological purpose. Further, there is nothing to indicate Plaintiff stopped filing inmate grievances or writing letters to state officials after the alleged retaliatory action. There Plaintiff's constitutional rights were not actually chilled. Therefore, there is no genuine issue of material fact as to Count Two. B. Defendant Manuel

A court is "required to exercise `sound judicial discretion' in deciding whether [default] judgment should be entered [and] `[t]his element of discretion makes it clear that the party making the request is not entitled to a default judgment as of right, even when defendant is technically in default and that fact has been noted under Rule 55(a).'" 10 Wright, Miller & Kane, Federal Practice and Procedure § 2685 (1983) (citing cases). "[I]n determining whether [a party] is entitled to default judgment, the Court must still analyze the -8-

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merits of [the] claims and determine if it is entitled to judgment." Allia v. Target Corp., 2010 WL 1050043 *11 n. 15 (D. N.J. Mar. 17, 2010). Defendant Manuel is only named in Count Two. There are no facts to support liability under Count Two against any named Defendant. The alleged retaliatory action had a legitimate penological purpose, Plaintiff has not shown a specific link between the alleged retaliation and his constitutional rights, and Plaintiff has not demonstrated his constitutional rights were chilled. As such, there is no issue of genuine fact as to Count Two against Manuel. Plaintiff's motions for default judgment (Docs. 45 and 49) will be denied. C. Count Three - Excessive Force

The Eighth Amendment prohibits cruel and unusual punishment. "[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitely v. Albers, 475 U.S. 312, 319 (1986). "The Eighth

Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)) (internal quotations omitted). "An inmate who complains of a `push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim." Id. (internal quotations omitted). Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. The "extent of injury suffered by an inmate is one factor" in the excessive force inquiry because it may suggest whether the force used was thought to be necessary. Id. at 7 "The extent of injury may also provide some indication of the amount of force applied." Wilkins, 130 S.Ct. at 1178.8 Plaintiff alleges Officer Ervin used excessive force when Officer Ervin placed his right hand on Plaintiff's shoulder and "slammed" Plaintiff against a door in the course of

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The absence of serious injury, however, does not end the inquiry. Id. -9-

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handcuffing him. Plaintiff concedes his injuries were no more serious than bruises and soreness to his left shoulder and left thumb. Officer Ervin allegedly "slammed" Plaintiff into the door after Plaintiff's refusal to obey a direct order regarding proper attire in the shower area. Plaintiff denies many of the allegations made by Plaintiff about obscene conduct and statements, but admits he asked Officer Ervin if he was gay and if he felt like a man. At a minimum, Plaintiff disobeyed a direct order and challenged Officer Ervin's authority during a disciplinary interaction, a clothed body search and handcuffing. Based on the allegations, the undisputed facts, the context of the events and the injury, the force was minimal. The use of de minimis force against an inmate disobeying orders serves a penological purpose to maintain order and security. There is no genuine issue of material fact as to Count Three. D. Count Four - Body Search

Liability under Section 1983 requires a showing of personal participation by the Defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In Count Four, Plaintiff alleges he was subject to an illegal "body search" when he was placed in an "outdoor cage" in the rain for two hours and subjected to a strip search. However, Count Four is pending only against Officer Braziel. Officer Braziel's participation consists of filing a rules violation report, RVR #105-04-120, after Plaintiff attempted to circumvent prison rules regarding the maximum number of inmates allowed in the yard, taking yard bags to religious ceremonies, making false statements to an officer and threatening an officer. After these events, Plaintiff was placed in restraints and escorted by Sergeant Hannaford and Officer Holman to the Custody Complex, where he was allegedly placed in an outdoor cage and subjected to a body search. There is no evidence showing Officer Braziel personally participated in the escort or the search, or ordered Plaintiff to be placed in an outdoor cage on April 23, 2005 or searched. Nor did Officer Braziel have such authority. Officer Braziel did not personally participate in the alleged violation. There is no genuine issue of material fact as to Count Four alleged against Officer Braziel.

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E.

Rule 56(d)

In his Response to Defendants' Motion for Summary Judgment, Plaintiff states he "has not been given a Court Order to begin Discovery and therfore [sic] Summary Judgment is barred as a matter of law." (Doc. 60, at 1). "If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d).9 This rule requires a court "continue a summary judgment motion upon a good faith showing by affidavit that the continuance is needed to obtain facts essential to preclude summary judgment." Cal Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). A party seeking additional time to conduct discovery must show "(1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these soughtafter facts are `essential' to resist the summary judgment motion." Id. Plaintiffs have failed to make this showing. Plaintiff has submitted a declaration with his Response, but it does not address the need to conduct more discovery, let alone specific reasons required by Rule 56(d). (Doc. 60, at 87-91). Plaintiff does not identify the specific facts he will seek, that those facts exist, and that those facts are essential to resisting the summary judgment motion. In his opposition to Defendants' statement of facts in support of the Motion for Summary Judgment, Plaintiff indicates more discovery is needed on two factual issues: (1) whether, as a result of limited staff due to memorial services for a correctional officer on January 18, 2005, Folsom was on lock down or only operating with limited inmate movement (Docs. 54-2 and 60 at ¶ 22); and (2) whether the memo indicating acceptable attire in the shower facilities permits shorts (Id. at ¶¶ 68 and 70). The Court has adopted Plaintiff's version of these facts for purposes of The 2010 Amendments to Rule 56 moved the provisions of subdivision (f) to subdivision (d). Plaintiff's Response was filed after the December 1, 2010 rule change. Plaintiff does not cite a specific rule. - 11 9

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summary judgment. Therefore, Plaintiff would not be in any better position to defeat summary judgment if permitted to take this discovery. "Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Fed. R. Civ. P. 56(b). Defendants' Motion for Summary Judgment will be granted. Accordingly, IT IS ORDERED Defendants' Motion for Summary Judgment (Doc. 54) is GRANTED. IT IS FURTHER ORDERED the Entry of Default against Defendant Armstrong (Doc. 51) is VACATED. IT IS FURTHER ORDERED Plaintiff's motions for default judgment (Docs. 45 and 49) are DENIED. IT IS FURTHER ORDERED the Clerk of the Court shall enter judgment in favor of Defendants Armstrong, Braziel, Clayton, Dutton, Ervin, Haworth, Howell, Jones, Manuel, McNeal, and Shambre. The Clerk shall terminate this case. DATED this 29th day of March, 2011.

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