Coston-Moore v. Medina et al

Filing 59

ORDER signed by District Judge Raner Collins on 7/27/2012; The 56 Findings and Recommendations are ADOPTED; 34 Motion for Summary Judgment is DENIED; Both Parties Are to Submit Confidential Statements to the Alternative Dispute Resolution Division Within Fifteen (15) Days. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Amber Renaye Coston-Moore,

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Plaintiff,

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vs.

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L. Medina, et al.,
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Defendant.
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No. 1:06-CV-01183-RCC
ORDER

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to

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42 U.S.C. § 1983 and alleges that on March 21, 2006 Defendants Hall and Medina injured

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her by grabbing and twisting her arms and pepper spraying her in the face. (Doc. 23). She

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further alleges that during this incident her right pinky finger was dislocated and that it is

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now permanently injured. (Id.) Defendants have filed their Motion for Summary Judgment,

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arguing that (1) their use of force was reasonable, necessary, and minimal, and (2) they are

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entitled to qualified immunity. (Doc. 35). The issues have been fully briefed, and the matter

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is now ready for ruling. (Docs. 34, 35 and 38-42). Because a genuine issue of material fact

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remains and Defendants are not entitled to qualified immunity, the Court will deny the

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motion.

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I.

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Evidentiary Issues
Defendants concede in their reply and supplemental reply that a genuine issue of material

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fact exists if the Court accepts all of the declarations submitted by Plaintiff. (Docs. 36 and

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42). Defendants, however, urge the Court to disregard the original declarations submitted

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by Plaintiff, arguing they are inadmissible hearsay because they were not signed under

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penalty of perjury as required by 28 U.S.C. § 1746. (Id.). In addition, Defendants argue the

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Court should disregard the supplemental declarations submitted by Plaintiff because they (1)

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were not signed under penalty of perjury, and (2) are frauds on the Court. (Doc. 42).

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Accordingly, the Court must determine, first, what evidence is admissible for the purposes

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of summary judgment. Only then can it determine whether a genuine issue of material fact

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prevents summary judgment.

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A. Original Declarations

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Pursuant to FED.R.CIV.P. 56(c)(4), the Court may consider declarations made on

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personal knowledge that set out facts that would be admissible in evidence and show that the

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declarant is competent to testify to the matters stated. United States v. Ritchie, 342 F.3d 903,

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909 (9th Cir. 2003). A declaration must be signed by the declarant under penalty of perjury.

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28 U.S.C. § 1746. Id.

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Plaintiff attached to her response the declarations of Inmates Thompson, Gallow,

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Tupuivao, Estrada, Caroline, and Calderon, who allege they witnessed Defendants’ assault

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on Plaintiff on March 21, 2006. (Doc. 35 at Ex. A-C and E-F). None of the declarations

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were signed under penalty of perjury. For this reason, the Court will not consider any of the

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original declarations in deciding the Motion for Summary Judgment.

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B. Supplemental Declarations

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Plaintiff submitted a supplemental response (Doc. 40), and attached her declaration and

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the declarations of Inmates Gallow, Thompson, Estrada, and Tupuivao. (Doc. 41 at Ex. A-

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D). Plaintiff’s supplemental declaration is not signed. Therefore, the Court will not consider

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Plaintiff’s supplemental declaration in deciding the Motion for Summary Judgment.

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The supplemental declarations of Gallow, Thompson, Tupuivao and Estrada were all

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signed under penalty of perjury. Still, Defendants asked the Court to hold an evidentiary

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hearing to authenticate the declarants’ signatures. (Doc. 42). Defendants argued there is no
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record of Gallow in the CDCR registry and that the signatures of Gallow, Thompson,

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Tupuivao, and Estrada on the declarations submitted with the supplemental response do not

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match their earlier declarations. (Id.). The Court granted Defendants’ request for an

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evidentiary hearing on the matter and referred the issue for hearing, and report and

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recommendation. (Doc. 43).

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Magistrate Judge Jennifer L. Thurston held an evidentiary hearing on April 25, 2012, and

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filed a Report and Recommendation thereafter. (Docs. 55 and 56). The Recommendation

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advised the Court to strike the declarations of Thompson and Tupuivao and deny Defendants’

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request for termination sanctions. (Doc. 56). Defendants objected, arguing Plaintiff’s

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testimony that she did not know or suspect Thompson and Tupuvaio’s declarations were

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falsified is plainly incredulous. (Doc. 57). Defendants ask the Court to impose sanctions in

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the form of either (1) termination, or (2) precluding Plaintiff from calling either Thompson

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or Tupuivao at trial. (Id.).

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The Court considers the Recommendation to be thorough and well-reasoned. The Court

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cannot agree that Plaintiff’s testimony at the evidentiary hearing is plainly incredulous.

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Therefore, the Court will adopt the Recommendation and strike from the record Thompson

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and Tupuivao’s declarations. The Court will not impose dismissal sanctions or restrict

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Plaintiff’s ability to call witnesses as trial.

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C. Conclusion

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The Court will not consider any of the original declarations or Plaintiff’s supplemental

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declaration because they were not signed under penalty of perjury. The Court will strike

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from the record and not consider the supplemental declarations of Thompson and Tupuivao

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because these declarations were falsified. Only the supplemental declarations of Gallow and

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Estrada remain in support of Plaintiff’s opposition to the Motion for Summary Judgment.

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II. Factual Allegations

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A. Defendants’ Version

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During the evening meal on the day in question, Plaintiff stuck her right arm out of her

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cell’s food port. (SOF ¶ 6). CO Medina ordered Plaintiff to put her arm back in the cell so
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he could close the food port, but Plaintiff refused to pull her arm back in until she spoke with

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the Sergeant. (SOF ¶ 7). When Sergeant Hall approached Plaintiff’s cell, he also ordered

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her to pull her arm back in. (SOF ¶ 8-10). Plaintiff again refused, telling Sergeant Hall he

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would have to put her arm back in for her. (SOF ¶ 10). Sergeant Hall again ordered Plaintiff

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to pull her arm back, and she again refused. (SOF ¶ 12).

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Because Plaintiff’s behavior was interrupting the distribution of the evening meal,

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Sergeant Hall grabbed her right arm with both hands and attempted to push it back inside the

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cell. (SOF ¶ 12-13). Plaintiff resisted by pushing her right arm outward and holding onto

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the food port with her left hand. (SOF ¶ 13). CO Medina grabbed Plaintiff’s left hand, but

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she broke free and struck at him. (SOF ¶ 14-15). CO Medina sprayed Plaintiff in the chest

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and face with a burst of pepper spray, and Plaintiff withdrew her arms and backed away from

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the cell door. (SOF ¶ 17-18). Sergeant Hall then closed the food port. (SOF ¶ 18).

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Ten minutes after the incident, Plaintiff was evaluated by medical staff. (SOF ¶ 20).

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They noted only small abrasions on her arms and hands. (SOF ¶ 21). Sergeant Hall visited

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Plaintiff’s cell forty minutes after the incident, and Plaintiff did not mention any injury or ask

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for medical attention. (SOF ¶ 23).

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B. Plaintiff’s Version

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During evening meal on the day in question, Plaintiff asked CO Medina to flush her

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toilet. (Gallow Declaration at 1:16-17). Sergeant Hall came to her cell door and “began

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yelling, asking Moore what she was doing...” (Id. at 1:21-22). After that, he yelled that he

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had come from a men’s prison, that Plaintiff was not a real man, and that he would break

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Plaintiff’s arm. (Id. at 1:23-25; Estrada Declaration at 1). Sergeant Hall grabbed Plaintiff’s

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right arm and began pulling it towards him, through the food port. (Gallow at 1:26-2:1).

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Plaintiff yelled for Sergeant Hall to stop. (Gallow at 2:2; Estrada at 1). Sergeant Hall

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ordered CO Medina to spray Plaintiff with pepper spray. (Gallow at 2:3-5). Plaintiff tried

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to block the spray with her left arm, but CO Medina grabbed her left arm and began twisting

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and pulling it. (Id. at 2:7-9). Defendants continued pulling on Plaintiff’s arms until she

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yelled that they had broken her finger. (Id. at 10-12; Estrada at 2).
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After Defendants left, Plaintiff continued to yell that they had broken her finger.

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(Gallow at 2:13-14; Estrada at 2). A nurse arrived after thereafter, but refused to examine

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Plaintiff’s finger. (Gallow at 2:13-19).

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III. Analysis

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Summary judgment is appropriate when the undisputed material facts, taken in a light

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more favorable to the non-moving party, demonstrate the moving party is entitled to

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judgment in its favor as a matter of law. Anderson v. Liberty Lobby Inc., 477 U.S. 242

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(1986). Summary judgment must be granted if party responding to the motion fails “to make

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a sufficient showing on an essential element of her case with respect to which she has the

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burden of proof.” Celotox Corp. v. Catrett, 477 U.S. 317, 325 (1986). When moving party

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does not bear the burden of proof, summary judgment is warranted by demonstration of an

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absence of facts to support non moving party’s case. Id..

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A. Excessive Force Claim

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When an inmate claims that prison officials violated his Eighth Amendment rights by

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using excessive physical force, the relevant inquiry is “whether force was applied in a good-

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faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Hudson v. McMillian, 503 U.S. 1, 7 (1992).

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According to Estrada and Gallow, immediately prior to using force on Plaintiff, Sergeant

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Hall mocked her gender identity and threatened to break her arm. In addition, both

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Defendants continued to use force, including pepper spray, after Plaintiff indicated she would

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comply. On this basis, a reasonable fact finder could conclude that Defendants acted

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sadistically and maliciously in their encounter with Plaintiff.

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B. Qualified Immunity

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The qualified immunity analysis is a two-part inquiry. The court must consider whether

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the facts “[t]aken in the light most favorable to the party asserting the injury . . . show [that]

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the [defendant’s] conduct violated a constitutional right, and the court must determine

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whether the right was clearly established at the time of the alleged violation. Saucier v. Katz,

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533 U.S. 194, 201 (2001).
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Defendants first argue that the evidence does not demonstrate they violated Plaintiff’s

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constitutional rights. (Doc. 34 at 10:1-7). As discussed above, however, the evidence taken

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in the light most favorable to Plaintiff demonstrates that Defendants did use excessive force.

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Defendants claim they are also entitled to qualified immunity under the second prong but

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fail to provide any relevant argument. (Id. at 10:8-20). This is not enough, and Defendants

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are not entitled to qualified immunity.

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IV. Conclusion

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The Court will accept Magistrate Judge Thurston’s Recommendation and permit Plaintiff

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to rely on the supplemental declarations of Gallow and Estrada. Based on this evidence, a

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reasonable fact finder could find for Plaintiff as to her excessive force claim against Sergeant

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Hall and CO Medina. Accordingly,

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IT IS ORDERED adopting Magistrate Judge Thurston’s Recommendation. (Doc. 56).

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The Clerk of Court shall strike the supplemental declarations of Thompson and Tupuivao

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from the record. (Doc. 41, Ex. B and D). The Court will not enter any other sanctions.

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IT IS FURTHER ORDERED denying Defendants’ Motion for Summary Judgment.
(Doc. 34).

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IT IS FURTHER ORDERED the parties to this action shall each, no later than fifteen

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(15) days from the date of the order, submit confidential statements as described below. The

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confidential statements shall not be served on the opposing party or filed with the court, but

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instead, delivered by mail, fax, email or personal delivery to the court's Alternative Dispute

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Resolution (ADR) division at the address, fax number or email address below and marked

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"Confidential." Such statements shall be limited to five (5) pages and shall include the

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following:

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1) the party's assessment of whether the instant action is of the type that would benefit
from a settlement proceeding;
2) the party's assessment of what factors, if any, will prevent settlement of this matter
prior to trial; and
3) any additional information the court may find useful in determining whether to set this
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matter for a settlement conference.

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Should the Court determine this action to be appropriate for referral to the Prisoner

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Settlement Program, the Court will set this matter for settlement conference before a

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magistrate judge or district judge.

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DATED this 27th day of July, 2012.

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