Elseth v. Speirs, et al

Filing 114

ORDER signed by Judge Garland E. Burrell, Jr. on 11/19/2010 GRANTING defendants' 111 Motion for Summary Judgment. This action is CLOSED. (Marciel, M)

Elseth v. Speirs, et al

Doc. 114

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Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ROGER ARDEN ELSETH; PATRICIA ANN ELSETH; and ALLEN ELSETH, by his guardian ad litem, ROGER ARDEN ELSETH and PATRICIA ANN ELSETH, Plaintiffs, v. VERNON SPEIRS, Chief Probation Officer of the County of Sacramento, individually; DAVID GORDON, Superintendent Sacramento County Department of Education, individually; Deputy Probation Officer RONALD TAM, individually; Deputy Probation Officer JEFF ELORDUY, individually; DR. RICHARD SAXTON, M.D., individually, Defendants. ________________________________ Defendants Verne

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

2:08-cv-02890-GEB-KJM ORDER GRANTING MOTION FOR SUMMARY ADJUDICATION

Speirs,

Ronald

Tam,

and

Jeff

Elorduy

("Defendants") move for summary adjudication on Plaintiffs' first claim for "Assault and Battery upon a Juvenile." Specifically, Defendants seek summary adjudication of the following: 1) Plaintiffs Patricia Elseth and Roger Elseth's first claim against all Defendants;

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2)

Plaintiff Allen Elseth's first claim against Defendant Verne Speirs; and

3)

Plaintiff Allen Elseth's first claim against Defendant Ronald Tam.1

Plaintiffs did not file an opposition or statement of nonopposition in response to the motion, as required by Local Rule 230(c). I. LEGAL STANDARD

A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is

satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec.

Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis omitted). This requires that the non-moving party "come forward with facts, and not allegations, [that] controvert the moving party's case." Town House,

Inc. v. Paulino, 381 F.2d 811, 814 (9th Cir. 1967) (citation omitted). All reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party." 614, 619 (9th Cir. 2010). When the defendant is the moving party and is seeking summary judgment on one or more of plaintiff's claims, "[The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of Bryan v. McPherson, 608 F.3d

Defendant Jeff Elorduy is moving for summary adjudication only as to Plaintiffs Patricia Elseth and Roger Elseth. He is not seeking summary adjudication on the claim against Plaintiff Allen Elseth. (Def.'s Mem. of P.&A. in Supp. of Mot. for Summ. Adjud. 2 n.1.) 2

1

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production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)(citations omitted). The Eastern District's Local Rule 260(b) further requires: Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial. E.D. Cal. R. 260(b). "If the moving party's statement of facts are not controverted in this manner, the Court may assume the facts as claimed by the moving party are admitted to exist without controversy."

Farrakhan v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) (quoting Beard v. Banks, 548 U.S. 521, 527 (2006)) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [moving party's] statement of undisputed facts . . . is deemed to have admitted the validity of [those] facts . . . ."). II. UNCONTROVERTED FACTS On December 5, 2006, Plaintiff Allen Elseth ("Allen") was housed at the Sacramento County Juvenile Hall. (Defs.' Statement of Undisputed Facts ("SUF") #10.) That morning, an officer noticed Allen was standing in the doorway of his cell looking out the window, which

3

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was against the rules. Id. #11. The officer asked him to back away from the window, but Allen refused. Id. Sometime thereafter, Defendants Ronald Tam ("Tam") and Jeff Elorduy ("Elorduy"), who were on-duty as members of the facility's security response team, were called to respond to a disruption in Allen's room. Id. #12. Tam and Elorduy went to his room and admonished Allen to follow the rules. Id. Shortly thereafter, Elorduy and Tam received another call to respond to Allen's room. Id. #13. They went to the housing unit and met with Probation Assistant Iohola Thomas ("Thomas"), who told them that Allen was kicking his door and yelling gang slurs and derogatory comments. Id. Thomas, Elorduy and Tam went to Allen's room, where he was laying on his bed. Id. 14. Allen denied he was the person who had been yelling and kicking the door. Id. Eventually, Thomas asked Elorduy and Tam to remove Allen from his room. Id. #15. Elorduy placed Allen's left arm in an arm bar, and Thomas did the same with his right arm. Id. Tam restrained Allen's legs. Id. Thomas and Elorduy then transitioned Allen into a rear wrist lock. Id. Allen alleges that during this interaction, Elorduy struck him in the face. Id. #16. He does not allege that Thomas or Tam hit him. Id. After the officers secured Allen, Elorduy grabbed one of Allen's shoulders, Thomas grabbed the other shoulder, and Tam grabbed his feet and carried him out of the room. Id. #17. Tam did not strike Allen, or cause any part of Allen's face to come into contact with something, at any time during his interactions with him on December 5, 2006. Id. #21.

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At the time of the incident, Defendant Verne Speirs ("Speirs") was the Chief Probation Officer of the Sacramento County Probation Department. Id. #7. He was not involved in removing Allen from his room, nor did he have any role in supervising his removal. Id. #19. Allen does not remember ever meeting or talking to Speirs. Id. #20. Before the filing of this action, Plaintiffs Roger Elseth and Patricia Elseth had no contact with any of the Defendants. Id. #23. Prior to December 5, 2006, Tam and Elorduy received training regarding the use of force on juveniles and how to respond to situations in Juvenile Hall. Id. #22. They were also aware that the County of Sacramento had a use of force policy in effect at the time, and received training concerning that policy prior to December 5, 2006. Id. The Sacramento County Probation Department ("Department") created a distinct training unit that specialized in teaching Probation Assistants and Deputy Probation Officers the proper methods for handling juveniles in detention and use of force. Id. #24. Outside trainers were brought in to provide routine and specialized "JIREH training" and training regarding crisis de-escalation. Id. The Department also sent staff members to training sessions around the country to learn the most advanced techniques to incorporate within the Department's training. Id. As of December 5, 2006, the Department also had established governing the complaints of staff misconduct, including

excessive force. Id. #25. The policies required prompt and impartial investigations of all complaints. Id. If a complaint was sustained, the Department took timely, appropriate corrective and disciplinary action. Id.

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The Department investigated Allen's allegations concerning his from his room on December 5, 2006 and concluded Allen's

allegations of excessive force were unfounded. Id. 26. III. DISCUSSION Plaintiffs allege this action is premised on 28 U.S.C. § and 42 U.S.C. § 1983 and is brought to "redress the

deprivation of civil rights arising under the Constitution of the United States, [the] 8th Amendment (Cruel and Unusual Punishment) and [the] 14th Amendment § 1, to redress injuries inflicted under color of law, and the denial of both substantive due process and procedural due process." (Fifth Am. Compl. ¶ 1.1.) The only claim asserted against Defendants is Plaintiffs' first claim, which is titled "Assault and Battery Upon a Juvenile." Id. at 13:24-14-20. Plaintiffs sued Speirs, Tam, and Elorduy in their individual capacities. Plaintiffs' allegations under the first claim include the following: On or about 12/05/2006, CERT team members, including Tam and Elorduy, acting under color of state law, secured [Allen] in a private room and inflicted corporal punishment without due process or provocation, by beating him for a period of time causing severe personal injuries, emotional distress, and pain. Speirs by his administrative indifference or willful neglect, failed to train the CERT team in the proper methods of response to situations in the Juvenile Centers, and the limits of their authority to inflict corporal punishment upon the minors housed therein. Speirs by his administrative indifference or willful neglect, created an environment of hostility that permitted Tam and Elorduy to subjectively, but objectively unreasonably, believe their conduct was authorized. (Fifth Am. Compl. ¶¶ 4.3, 4.5, 7.3, 7.4, 7.5.) 6

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A.

Plaintiffs Roger Elseth and Patricia Elseth's Claim against Defendants Defendants contend they are entitled to summary adjudication

against Plaintiffs Patricia Elseth and Roger Elseth, arguing, inter alia, "there are no facts alleged to show that [they] suffered any injury as a result of the action or inaction of Defendants[;]"

therefore, they "lack standing to make a claim against [them]." (Mot. 7:14-15, 7:26-28.) To establish standing in federal court, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Further, the injury must be "particularized," i.e. it "must affect the plaintiff in a personal and individual way." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). A plaintiff generally "cannot rest his claim to relief on the legal rights or interests of [others]." Madrigal v. Tommy Bahama Group, Inc., No. CV 09-08924 SJO (MANx), 2010 WL 4384235 (C.D. Cal. 2010) (quoting Warth v. Seldon, 422 U.S. 490, 499 (1975).) Although Roger Elseth and Patricia Elseth are listed as Plaintiffs in this claim, they do not allege that they have suffered any injury caused by Defendants. Patricia Elseth and Roger Elseth are not even mentioned in the allegations specific to the first claim. (Fifth Am. Compl. 13:24-14-20.) Further, it is uncontroverted that Tam, Elorduy and Speirs had no contact with Patricia Elseth or Roger Elseth until after this federal lawsuit was filed. Therefore, Defendants have shown the absence of a genuine issue of material fact on this issue, and Defendants' motion for summary adjudication on Patricia Elseth and Roger Elseth's first claim is granted. 7

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B.

Plaintiff Allen Elseth's Claim against Defendant Verne Speirs Defendant Verne Speirs argues he is entitled to summary

adjudication against Allen since Allen "does not allege that [he] personally participated in [his removal from his room]" and "there are no facts or evidence [to] support a supervisory liability claim against [him]." (Mot. 9:9-10, 9:18-19.) To recover under 42 U.S.C. § 1983 against an individual in his or her supervisory capacity, a plaintiff must prove the defendant "directed his or her subordinates to commit the offensive act," "set into motion a series of acts by others which he knew or reasonably should have known would cause others to inflict the constitutional injury," "knew of the violations being committed by subordinates yet failed to act to prevent them," or "acquiesc[ed] in the constitutional deprivations of which the complaint is made." Gonzalez v. City of Fresno, No. 1:06-cv-01751-OWW-TAG, 2009 WL 2208300, at *4 (E.D. Cal. 2009) (quotations and citations omitted). "The Ninth Circuit also recognizes that `[s]upervisory liability [can be] imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates . . . .'" Id. (quoting Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005).) While the Ninth Circuit has articulated various circumstances in which a supervisor can be liable in a § 1983 case, the common theme is that to impose individual liability on a supervisor, the supervisor must have either taken part in the alleged constitutional violation or in some manner caused the constitutional violation through his or her own culpable action or inaction. Id. at *5 (quotation and citations omitted).

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Here, the unopposed Declaration of Verne Speirs and Allen's deposition testimony evidence that Speirs did not personally participate in, nor did he supervise, Allen's removal from his room. (Allen Depo. 144:2-8, Defs.' App. of Ex., Ex. B; Verne Decl. ¶8, Ex. H.) Further, it is undisputed that the Department had policies in effect at the time of the alleged incident concerning both the use of force on juveniles and complaints about staff misconduct. The Department had a separate

training unit, which specialized in training officers concerning the use of force and the proper methods in handling juveniles in detention, and both Tam and Elorduy declare they received such training prior to the incident. (Elorduy Decl. ¶ 7, Ex. I; Tam Decl. ¶ 7, Ex. J.) Lastly, it is uncontroverted that the Department conducted an internal

investigation into Allen's allegations. There is no evidence that Speirs "[took] part in [Allen's] constitutional violation or in some manner caused the

constitutional violation through [his] own culpable action or inaction." Gonzalez v. City of Fresno, 2009 WL 2208300, at *5. motion for summary adjudication on Allen Therefore, Speirs' first claim is

Elseth's

granted. C. Plaintiff Allen Elseth's Claim against Defendant Ronald Tam Defendant Ronald Tam moves for summary judgment on Allen Elseth's first claim, arguing, inter alia, "the law is not clearly established that a deputy probation officer can be held liable . . . simply by holding a juvenile's legs to secure him . . . or by assisting in carrying the juvenile out of his room[;]" therefore, he is entitled to qualified immunity. (Mot. 13:1-8.) The doctrine of qualified immunity "protects government

officials from liability for civil damages insofar as their conduct does 9

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not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129

S. Ct. 808, 815 (2009) (quotation omitted). A defendant's entitlement to qualified immunity is evaluated using a two-step inquiry. Saucier v.

Katz, 533 U.S. 194, 200 (2001) (quotation omitted). Under Saucier's first step, the court must consider "whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right." Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (quotation omitted). Under Saucier's second step, the court asks "if the right was clearly established." Id. (quotation omitted). "The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. at 202 (citation omitted). It is within the district court's "sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the

particular case at hand." Pearson v. Callahan, 129 S. Ct. at 818. The gravaman of Allen's first claim is his allegation that he was subjected to "corporal punishment" when Tam and Elorduy "beat[] him for a period of time." (Fifth Am. Compl. ¶ 7.2.) However, Allen gave deposition testimony that only Elorduy hit him, and Tam declares his only physical contact with Allen was "plac[ing] his legs in a figure four[,]" and holding him by his feet when he, Elorduy and Thomas removed him from his room. (Allen Depo. 143:9-17, Ex. B; Tam Decl. ¶¶ 4-6, Ex. J.) Tam further declares that at no time during his interactions with Allen did he strike him or cause any part of his face to come into contact with something. (Tam Decl. ¶¶ 6, Ex. J.) 10 It would not be clear

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to a reasonable officer that such conduct was unlawful under the circumstances in which Tam acted, i.e. being asked to remove a person from their room in a juvenile detention center after responding to two disturbance calls involving that person. See Hudson v. McMillian, 503 U.S. 1, 5-6 (1992) ("[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual

Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."); White v. Roper, 901 F.2d 1501, 1506-1507 (9th Cir. 1990) (holding "egregious government conduct in the form of excessive and brutal force constitutes a violation of substantive due cognizable under section 1983"). Therefore, Tam's motion for summary adjudication on Allen Elseth's first claim is granted. IV. CONCLUSION For the stated reasons, Defendants' motion for summary adjudication is GRANTED. Dated: November 19, 2010

GARLAND E. BURRELL, JR. United States District Judge

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