Barry v. Felker et al

Filing 75

ORDER signed by District Judge Philip M. Pro on 9/3/2013 GRANTING 63 Motion for Summary Judgment as to Defendants Jason Bishop and Nickolus Albonico. (Michel, G)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY DEMOND BARRY,
Plaintiff,

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v.

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T. FELKER, et al.,

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Defendants.

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2:08-CV-01722-PMP-GWF
ORDER

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Before the Court is Defendants Jason Bishop and Nickolus Albonico’s Motion for

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Summary Judgment (Doc. #63), filed on March 1, 2013. Plaintiff Timothy Demond Barry

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filed an Opposition (Doc. #70) with supporting Declarations (Doc. #71, #72) on May 15,

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2013. Defendants filed a Reply (Doc. #73) on May 24, 2013.

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I. BACKGROUND

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During the time relevant to the events at issue in this case, Plaintiff Timothy Demond

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Barry (“Barry”) was an inmate housed at the California Department of Corrections and

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Rehabilitation, High Desert State Prison (“HDSP”). (Defs.’ Mot. Summ. J. (Doc. #63)

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[“MSJ”], Decl. of Nickolus Albonico in Support of Defs.’ Mot. Summ. J. [“Albonico

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Decl.”] at 2; Decl. of Timothy Demond Barry in Support of Opp’n to Defs.’ Mot. Summ. J.

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(Doc. #71) [“Barry Decl.”] at 1.) Defendants Nickolus Albonico (“Albonico”) and Jason

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Bishop (“Bishop”) are correctional lieutenants at HDSP. (Albonico Decl. at 1; MSJ, Decl.

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of Jason Bishop in Support of Defs.’ Mot. Summ. J. [“Bishop Decl.”] at 1.)

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On July 23, 2007, correctional officers at HDSP saw two inmates chasing another

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inmate across the yard at Facility C. (Albonico Decl. at 1.) One of the pursuer inmates

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stabbed the victim inmate, who continued to run across the yard. (Id.) The victim ran to the

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other side of the yard, fell to the ground, and died from multiple stab wounds. (Id.)

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Correctional officers ordered the assailants to the ground, and one of the assailants fell near

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a group of inmates not involved in the attack. (Id.) Correctional officers recovered one

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weapon from one of the assailants. (Id. at 1-2.) However, because the victim had multiple

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stab wounds and was being chased by two inmates, correctional officers were concerned

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another weapon was used in the assault that had not been recovered. (Id.) Defendant

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Albonico therefore ordered a systematic search of every inmate in the yard to locate any

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weapons. (Id. at 2.) There were over 100 inmates in the yard at the time. (Id.)

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Correctional officers subjected each inmate to a strip search, except for three inmates who

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refused to submit to a strip search in the yard. (Id.) Plaintiff Barry was among those who

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refused to be strip searched in the yard. (Id.; Barry Decl. at 1.)
Albonico again ordered the three inmates to submit to strip searches in the yard but

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they refused. (Albonico Decl. at 2; MSJ, Decl. of Lakeysia Beene in Support of Defs.’ Mot.

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Summ. J., Ex. A, Dep. of Timothy Barry [“Barry Dep.”] at 9.) Albonico ordered

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correctional officers to place Barry and the other two inmates who refused to be strip

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searched into handcuffs, escort the inmates to the concrete yard wall of Building C-5, place

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them on their knees, and supervise these inmates while the other inmates were searched and

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the yard secured. (Albonico Decl. at 2.) According to Albonico, when inmates refuse to

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submit to strip searches they sometimes are placed in the prison’s program holding cells,

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but at the time Barry refused to submit to a search, the program holding cells were

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occupied. (Id.) According to Barry, one inmate, Melvin Foster, was escorted to medical

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rather than forced to his knees on the concrete. (MSJ, Barry Dep. at 12.)

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Albonico states he chose the location to which the three inmates were escorted for

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tactical reasons, as it provided “optimum gun coverage and a clear path for staff to

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respond.” (Albonico Decl. at 2.) Albonico states he ordered the inmates to their knees

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because a “standing inmate imposes [sic] a threat because he can move quickly and attack

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before officers have sufficient time to respond to prevent the attack.” (Id.) Albonico avers

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that his “decision to direct staff to escort BARRY away from the crime scene and kneel on

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the ground was based on a tactical decision to restore control of the yard and to ensure the

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safety of staff and other inmates while a search for a possible second murder weapon was

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conducted.” (Id. at 3.)

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Barry avers Albonico and Bishop ordered Barry to kneel on hot concrete and “stood

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idly by while he cried for help when he was suffering the horrific side effects of being

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placed on hot concrete getting second degree burns.” (Barry Decl. at 1-2.) Another inmate,

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Earl Fullilove (“Fullilove”), states under oath that he “observed several other unamed [sic]

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officers and these defendants force inmate Barry to the ground on his knees.” (Decl. of

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Inmate Earl Fullilove T-43038 in Support of Pl.’s Opp’n to Defs.’ Mot. Summ. J. (Doc.

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#72) at 2.) Fullilove further states that while he and other inmates “were complying with

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officers the plaintiff Barry was still in that position on his knees in the sun on the hot

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concrete the entire time” until Fullilove and the other inmates were escorted off the yard.

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(Id.) Albonico denies he heard any of the inmates complain about pain to their knees.

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(Albonico Decl. at 2.) According to Albonico, the three inmates were on their knees for

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approximately twenty minutes while the yard was cleared. (Id. at 3.)

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After the yard was cleared of the other inmates, Albonico ordered other officers to

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escort the three inmates to the Facility C Medical Clinic for a strip search. (Id.) Albonico

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denies he noticed any injury to the inmates. (Id.) Medical staff medically cleared Barry at

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2:15 p.m., noting abrasions on Barry’s knees. (MSJ, Decl. of Dmitri Hanlon in Support of

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Defs.’ Mot. Summ. J., Medical Report of Injury or Unusual Occurrence.) According to the
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Medical Report, the incident occurred at 1:45 p.m., and Barry was seen in the medical

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office at 2:10 p.m. (Id.)

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Defendant Bishop denies he participated in the events in the yard at Facility C on July

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23, 2007, as he did not clock into work until 2 p.m. (Bishop Decl. at 1.) According to

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Bishop, the first he learned of any incident involving Barry was when a nurse informed him

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at approximately 6:30 p.m. that she had examined Barry, and Barry had complained of

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burns to his knees. (Bishop Decl. at 1-2.) An Encounter Form indicates a nurse and a

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physician examined Barry at 5:45 p.m., and concluded he suffered second degree burns to

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his knees. (Pl.’s Opp’n to Defs.’ Mot. Summ. J. (Doc. #170), Ex. C.) According to the

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Encounter Form, Barry was discharged from medical at 6:15 p.m. (Id.)

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Barry brought suit in this Court on July 25, 2008, against Defendants Albonico,

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Bishop, and T. Felker, the warden at HDSP. (Compl. (Doc. #1).) Barry alleges Defendants

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violated his Eighth Amendment right against cruel and unusual punishment by forcing him

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to kneel on the hot concrete despite his complaints that he was being injured, resulting in

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second degree burns to his knees.

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Defendant Felker previously moved to dismiss the Complaint’s claims against him,

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which this Court granted. (Mot. to Dismiss (Doc. #16); Order (Doc. #21).) Although the

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motion was filed only by Defendant Felker, the Court erroneously granted dismissal as to

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Defendants Albonico and Bishop as well. (Order (Doc. #21); Order (Doc. #26).) After that

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error was corrected, Defendants Albonico and Bishop moved for summary judgment.

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(Defs.’ Mot. Summ. J. (Doc. #47).) The Court granted summary judgment, in part because

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Barry had not filed a substantive response to the summary judgment motion. (Order (Doc.

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#53).) The United States Court of Appeals reversed, concluding the record did not

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“indicate that Barry received notice of the requirements to defeat summary judgment.”

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(Mem. (Doc. #59) at 2 (citing Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en

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banc); Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012)).)
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On remand, Defendants Albonico and Bishop again move for summary judgment.

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Defendants argue they are entitled to summary judgment on Barry’s Eighth Amendment

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claim because there is no evidence Defendants inflicted unnecessary and wanton force.

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Defendants contend Albonico’s orders were reasonable and necessary given the security

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situation in the yard following the murder of an inmate. Defendants contend Bishop did not

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order Barry to his knees, as he did not begin work until 2:00 p.m., and thus Bishop did not

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participate in the incident. Alternatively, Defendants argue they are entitled to qualified

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immunity because a reasonable official in Defendants’ position would not believe it was

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unconstitutional to make an inmate kneel on the ground while other inmates were searched

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for a weapon that may have been used in the murder of another inmate.
Barry responds that he has presented evidence, in the form of his own affidavit and

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that of Fullilove, that Defendants ordered Barry to his knees on hot concrete, they kept him

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in that position despite his complaints of pain, and he suffered second degree burns as a

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result. Barry thus argues Defendants were deliberately indifferent to a threat to his health

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and safety. Barry concedes Bishop did not order Barry to his knees, but contends Bishop

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stood by and did nothing while Barry was forced to kneel on the hot concrete.

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II. DISCUSSION

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Summary judgment is appropriate if the pleadings, the discovery and disclosure

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materials on file, and any affidavits show that “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a), (c). A fact is “material” if it might affect the outcome of a suit, as determined by the

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governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An

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issue is “genuine” if sufficient evidence exists such that a reasonable fact finder could find

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for the non-moving party. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

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Cir. 2002). Initially, the moving party bears the burden of proving there is no genuine issue

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of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). After the
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moving party meets its burden, the burden shifts to the non-moving party to produce

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evidence that a genuine issue of material fact remains for trial. Id. The Court views all

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evidence in the light most favorable to the non-moving party. Id.

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Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [law],

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subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of

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any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

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the party injured in an action at law . . . or other proper proceeding for redress.”

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Consequently, to establish liability under § 1983, a plaintiff must allege the violation of a

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right secured by the Constitution and laws of the United States, and must show that the

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alleged deprivation was committed by a person acting under color of state law. Broam v.

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Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

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To allay the “risk that fear of personal monetary liability and harassing litigation will

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unduly inhibit officials in the discharge of their duties,” government officials performing

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discretionary functions may be entitled to qualified immunity for claims made under

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§ 1983. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects

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“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

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475 U.S. 335, 341 (1986). In ruling on a qualified immunity defense, a court considers

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whether the facts alleged show the defendant’s conduct violated a constitutional right.

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Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). If the plaintiff has shown a

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deprivation of a constitutional right, the Court must determine whether that right was

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clearly established. Id.

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A right is clearly established if “‘it would be clear to a reasonable officer that his

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conduct was unlawful in the situation he confronted.’” Wilkins v. City of Oakland, 350

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F.3d 949, 954 (9th Cir. 2003) (emphasis omitted) (quoting Saucier v. Katz, 533 U.S. 194,

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202 (2001)). The Court should make this second inquiry “in light of the specific context of

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the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. An officer will be
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entitled to qualified immunity even if he was mistaken in his belief that his conduct was

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lawful, so long as that belief was reasonable. Wilkins, 350 F.3d at 955. “The plaintiff

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bears the burden of showing that the right at issue was clearly established . . . .” Sorrels,

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290 F.3d at 969. But, a plaintiff need not establish a court previously had declared the

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defendant’s behavior unconstitutional if it would be clear from prior precedent that the

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conduct was unlawful. Blueford v. Prunty, 108 F.3d 251, 254 (9th Cir. 1997).

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Here, Barry alleges Defendants Albonico and Bishop violated his Eighth Amendment

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rights. The Eighth Amendment to the United States Constitution prohibits “cruel and

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unusual” punishment. U.S. Const. amend. VIII. “After incarceration, only the unnecessary

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and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the

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Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotation omitted). To

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establish an Eighth Amendment violation based on a use of force, a plaintiff must show the

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amount of force used was more than de minimis or otherwise involved force “repugnant to

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the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (quotation

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omitted). Additionally, the plaintiff must show the prison official acted with a culpable

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state of mind. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

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When an Eighth Amendment claim is based on an allegation that a prison official

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used excessive physical force, the culpable state of mind inquiry is “whether force was

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applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm,” rather than a deliberate indifference standard. Hudson, 503

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U.S. at 6-7 (citing Whitley, 475 U.S. at 320-21). “[P]rison administrators are charged with

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the responsibility of ensuring the safety of the prison staff, administrative personnel, and

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visitors, as well as . . . the safety of the inmates themselves.” Whitley, 475 U.S. at 320

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(quotation omitted). Consequently, the deliberate indifference standard “does not

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adequately capture the importance of such competing obligations, or convey the appropriate

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hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and
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frequently without the luxury of a second chance.” Id. The Court considers several factors

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in determining whether force was applied maliciously and sadistically to cause harm,

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including:

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(1) the extent of injury suffered by an inmate; (2) the need for application of
force; (3) the relationship between that need and the amount of force used; (4)
the threat reasonably perceived by the responsible officials; and (5) any efforts
made to temper the severity of a forceful response.

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Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
Viewing the evidence in the light most favorable to Barry as the non-moving party,
Barry has failed to present evidence raising a genuine issue of fact that Defendants

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Albonico and Bishop acted maliciously and sadistically to cause harm, as opposed to a good

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faith effort to restore discipline. Barry’s injuries were not trivial, as he suffered second

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degree burns to his knees. However, the need to apply force was critical. Two inmates in

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the yard had just murdered another inmate and officers believed one of the murder weapons

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might be missing among a crowd of over 100 inmates in the yard. Such a situation posed an

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obvious and immediate safety threat to correctional staff and other inmates.

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The force used under the circumstances from the perspective of a reasonable officer

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on the scene was minimal. The three non-consenting inmates were escorted, without

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physical abuse, to a location which provided tactical advantages in light of the dangerous

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situation in the yard. Handcuffing the inmates and forcing them to their knees also was a

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minimally forceful means of neutralizing any threat these inmates may pose while officers

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searched the other inmates in the yard for weapons. Barry and the other two non-consenting

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inmates had the option to consent to a search in the yard rather than remain kneeling on the

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hot concrete, but they refused. Given the high pressure situation of a potential murder

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weapon among a group of over 100 inmates, there is no evidence raising a genuine issue of

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material fact that Defendant Albonico or Bishop ordered Barry to his knees and kept him

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there despite his complaints for any reason other than a good faith attempt to restore order
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following a murder and in light of a potential missing murder weapon among a large crowd

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of inmates.1

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Barry presents no evidence that Albonico’s or Bishop’s purpose was to punish or to

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maliciously cause harm. There is some reference in Barry’s deposition attached to

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Defendants’ Motion for Summary Judgment that a correctional officer told Barry he could

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“get naked” and then be permitted to go back to his cell. (MSJ, Barry Dep. at 12.) To the

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extent this testimony could lead to the inference that Barry was forced to remain on his

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knees on the hot concrete as punishment for refusing to be strip searched in the yard, there

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is no evidence Albonico or Bishop made this statement to Barry. Rather, Barry’s Complaint

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asserts a similar statement was made by “John Doe (1).” (Compl. at § IV, continuation

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page.) Barry identified Albonico and Bishop by name in the Complaint and references

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“John Doe (1)” as a different individual. (Id. at §§ III-IV.) Barry presents no evidence at

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summary judgment that either Albonico or Bishop made similar comments from which a

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reasonable jury could conclude Albonico or Bishop acted with the requisite culpable state

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of mind for an Eighth Amendment violation. Barry presents no other evidence that either

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Defendant acted with any purpose other than to restore order in light of the exigent

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circumstances the correctional officers were confronting.

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Moreover, even if Barry has presented evidence raising an issue of fact that

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Defendants violated his Eighth Amendment rights, Defendants would be entitled to

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qualified immunity. It would not be clear to an officer in Defendants’ position that ordering

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and keeping Barry on his knees under the circumstances would violate Barry’s Eighth

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Amendment rights.

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In sum, it is unfortunate that Barry suffered pain and sustained injuries as a result of
the July 23, 2007 incident. However, “[t]he infliction of pain in the course of a prison

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Defendant Bishop denies he was present and Defendant Albonico denies he heard any
complaints of pain, but the Court must view the evidence in the light most favorable to Barry.
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security measure . . . does not amount to cruel and unusual punishment simply because it

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may appear in retrospect that the degree of force authorized or applied for security purposes

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was unreasonable, and hence unnecessary in the strict sense.” Whitley, 475 U.S. at 319.

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Given the situation Albonico and Bishop confronted, no genuine issue of material fact

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remains that they did not violate Barry’s Eighth Amendment rights. The Court therefore

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will grant Defendants’ summary judgment motion.

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III. CONCLUSION

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IT IS THEREFORE ORDERED that Defendants Jason Bishop and Nickolus
Albonico’s Motion for Summary Judgment (Doc. #63) is hereby GRANTED.

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IT IS FURTHER ORDERED that Judgment is hereby entered in favor of

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Defendants Jason Bishop and Nickolus Albonico and against Plaintiff Timothy Demond

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Barry.

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DATED: September 3, 2013
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PHILIP M. PRO
United States District Judge

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