Mitchell v. Schwartzenegger et al

Filing 255

ORDER signed by District Judge Robert C. Jones on 3/8/16 ORDERING that the MOTIONS 242 , 244 , 241 , 240 are DENIED.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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_____________________________________
JOHN EDWARD MITCHELL,

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Plaintiff,

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vs.
D. ROSARIO et al.

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Defendants.

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2:09-cv-03012-RCJ
ORDER

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This is a prisoner civil rights case. A jury has returned a verdict for the defense. Pending

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before the Court are four post-trial motions.

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I.

FACTS AND PROCEDURAL HISTORY

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On October 28, 2009, Plaintiff John Edward Mitchell, a prisoner in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”) currently incarcerated at

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California State Prison (“CSP”) Corcoran, sued thirteen Defendants in this Court based on events

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that occurred while he was incarcerated at CSP Solano. Plaintiff alleged substantially as follows.

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On August 5, 2008, Plaintiff refused to be placed into a cell with a new, unfamiliar cell mate,

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asking to be put into administrative segregation instead. Eventually, guards interpreted his

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requests as noncompliance and tackled him to the ground before taking him to the infirmary and

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then to administrative segregation. When Plaintiff indicated he intended to file a complaint for

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excessive force, he was threatened with 90 days of administrative segregation. Defendants

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carried out their threat when Plaintiff filed his grievance, keeping him in administrative

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segregation until he was transferred to California Men’s Colony on April 28, 2009.

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The Complaint listed four nominal constitutional claims and two nominal state law

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claims. Plaintiff filed two supplemental complaints and separate motions for leave to file an

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amended supplemental complaint and an amended complaint. The magistrate judge instructed

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Plaintiff to consolidate his claims into a single amended complaint and gave him general

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guidance as to pleading. Plaintiff filed the First Amended Complaint (“FAC”) on March 4,

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2010. The FAC lists seven nominal claims: (1) excessive force in violation of the Eighth

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Amendment; (2)–(4), (7) denial of the right to petition the government for redress of grievances

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and retaliation in violation of the First, Eighth, and Fourteenth Amendments; and (5)–(6)

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violation of the California State Tort Act (“CSTA”). Defendants moved to dismiss the FAC.

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The district judge adopted the magistrate judge’s recommendation to dismiss the FAC, with

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leave to amend in part, denying leave to amend: (1) as against Defendants Durfey,

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Schwarzenegger, and Cate for failure to exhaust administrative remedies; (2) as to the fifth claim

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for untimeliness; (3) as to claims for verbal harassment by Defendants Singh, Cappel, McGuire,

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and Fowler; (4) as to the due process components of claims three and seven against Defendants

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Singh, Cappel, Bickham, and Scavetta; (5) as to claim seven as against Defendants Bickham and

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Scavetta; (6) as to the sixth claim for failure to state a claim; (7) and as to the Eighth Amendment

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component of the fourth claim as against Defendants Haviland and Singh.

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On February 23, 2012, Plaintiff filed the Second Amended Complaint (“SAC”), listing

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three claims: (1) excessive force in violation of the Eighth Amendment (against Defendants

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Rosario, Easterling, and Durfey); (2) denial of the right to petition the government for redress of

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grievances and retaliation in violation of the First Amendment (against Defendants Rosario and

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Garcia); and (3) a similar claim (against Defendants Haviland, Singh, Cappel, Bickham, and

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McGuire). Defendants moved to dismiss the SAC. The district judge adopted the magistrate

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judge’s recommendation to dismiss the excessive force claim as against Easterling without

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prejudice; to dismiss the retaliation claims as against Bickham, Cappel, Singh, and Haviland with

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prejudice; and to permit the retaliation claims to proceed as against McGuire. The district judge

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ordered Rosario to answer the excessive force claim and ordered Rosario, Garcia, and McGuire

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to answer the respective First Amendment retaliation claims against them. Defendants jointly

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answered. A settlement conference was unsuccessful. Defendants moved for summary

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judgment. The district judge adopted the magistrate judge’s recommendation to grant summary

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judgment as to the retaliation claim against Garcia but otherwise to deny the motion.
The Eighth Amendment excessive force claim against Rosario and the separate First

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Amendment retaliation claims against Rosario and McGuire were tried to a jury. The jury

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returned a verdict for Defendants. Plaintiff has filed four post-trial motions.

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II.

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DISCUSSION
First and second, Plaintiff asks the Court to order a new trial under Rule 59 or for relief

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from judgment under Rule 60(b) based on surprise at trial. He argues that although he had

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requested production of “any and all incident packages,” and although Defendants responded

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that they had disclosed all non-confidential documents in response, pages 1–10 of Exhibit B

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produced by Defendants (a “use of force critique”) was allegedly an altered version of the

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document. Plaintiff also argues that the Court did not permit the entire document to be entered

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into evidence and did not permit Plaintiff to examine or cross-examine Defendants Rosario or

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Easterling about the document. As Defendants note in response, the use of force critique was not

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even introduced at trial, and Plaintiff did not attempt to call any document custodian to challenge

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the authenticity of the document Defendants provided him before trial. Plaintiff also objects to

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Exhibit J, claiming it was not produced during discovery, but Defendants argue that Plaintiff

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never requested its disclosure, that it was in fact disclosed with Defendants’ trial exhibits, and

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that Plaintiff did not object at trial, in any case. Next, the Court again rejects Plaintiff’s

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argument that the Court’s ruling and instruction to the jury that Heck v. Humphrey precluded the

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issue of the propriety of the use of some force, and that only the alleged excessiveness of the

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force used could be litigated in the present case, was in error. Next, the Court will not revisit

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previous rulings by the Magistrate Judge that there was no evidence of spoliation of alleged

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videotape evidence or even any evidence of the existence of any videotape of the incident.

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Third Plaintiff asks the Deputy Attorney General to stipulate to make certain evidence

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part of the record. The request requires no judicial action, and the Court therefore denies it. The

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Deputy Attorney General may stipulate as Plaintiff requests if she wishes. The Court expresses

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no opinion at this time as to whether it would grant the relief requested if so stipulated. Fourth,

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Plaintiff requests appointment of counsel. The Court denies that motion.
CONCLUSION

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IT IS HEREBY ORDERED that the Motions (ECF Nos. 240, 241, 242, 244) are
DENIED.
IT IS SO ORDERED.
DATED: This 8th day of March, 2016.
Dated this 28th day of December, 2015.

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_____________________________________
ROBERT C. JONES
United States District Judge

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