Claiborne v. Blauser et al

Filing 80

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/4/2013 RECOMMENDING that the 59 motion for summary judgment be denied. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS GERALD CLAIBORNE,
Plaintiff,

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vs.

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No. 2:10-cv-2427 LKK EFB P

BLAUSER, et al.,
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42

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U.S.C. § 1983. Pending before the court is defendants’ September 21, 2012 motion for summary

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judgment. Dckt. No. 59. For the reasons explained below, it is recommended that the motion be

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denied.

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I.

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The Complaint
This action proceeds on the verified complaint filed September 10, 2010. Dckt. No. 1.

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Plaintiff alleges as follows: Plaintiff is mobility impaired due to a total knee replacement

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and requires a cane to ambulate. Dckt. No. 1 at 3.1 On May 3, 2010, defendant Blauser

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informed plaintiff she had received a call informing her that plaintiff had been “hanging out.”

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Page numbers cited herein refer to those assigned by the court’s electronic docketing
system and not those assigned by the parties.
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Id. at 4. Plaintiff denied he had been hanging out. Id. Defendant Blauser then demanded that

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plaintiff be confined to his cell and denied yard or day-room privileges. Id. In response,

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plaintiff asked defendant Blauser if he could speak with the yard sergeant. Id. Defendant

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Blauser repeated her order that plaintiff go to his cell. Id. Plaintiff again requested to see the

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yard sergeant. Id. Defendant Blauser then took plaintiff’s cane and ordered plaintiff to “cuff

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up” without waist chains. Id. Plaintiff objected when defendant Blauser took his cane and

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handcuffed him behind his back, but defendant Blauser responded that it was California

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Department of Corrections and Rehabilitation (“CDCR”) procedure. Id.

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Plaintiff further alleges that after being handcuffed, defendants Blauser and Martin

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“march[ed]/drag[ged]” plaintiff across the yard, “which is riddled with potholes and grass

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patches.” Id. at 5. Plaintiff tried to alert defendants to his difficulty walking across the yard

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without his cane, but they continued to jerk plaintiff’s arm and pull him across the yard. Id. As

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a result, plaintiff stumbled. Id. Defendant Blauser then insisted that plaintiff was trying to get

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away from her and could not be convinced that plaintiff needed his cane or that they were

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dragging him too fast. Id. During the escort, plaintiff stumbled over a three to five inch lift on

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the ground. Id. When defendant Blauser felt the weight of plaintiff coming down, she yelled

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“He’s resisting,” and took plaintiff to the ground. Id. Defendant Blauser then kneed him in the

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ribs, on his replacement knee, and on his head. Id. She also punched him in the face three to

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five times, until relief officers arrived. Id. at 6.

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As a result of defendants’ actions, plaintiff alleges that he suffered abrasions to his face

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and knee, his knee became “wobbly,” his ribs were “re-injured,” and he began to suffer

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headaches. Id. at 6, 10. Plaintiff’s injuries could have been prevented by application of waist

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restraints, use of his cane, and by taking appropriate care in walking plaintiff on level terrain. Id.

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at 7.

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Plaintiff alleges that defendants were or should have been aware of plaintiff’s medical

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condition. Id. at 7. Further, plaintiff generally alleges that defendants “knew that constitutional

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violations would take place and/or was taking place [sic] and failed to take any actions to correct

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the constitutional violations.” Id. at 12.

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In the court’s screening order, the court found that “plaintiff’s allegations of being

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dragged while handcuffed behind his back, and subsequently forced to the ground and beaten,

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state[d] colorable Eighth Amendment excessive force and deliberate indifference to medical

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needs claims against defendants Blauser and Martin.” Dckt. No. 22 at 7-8.

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II.

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Defendants’ Evidentiary Objections
Defendants have submitted fourteen objections to plaintiff’s evidence submitted in

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support of his opposition to the summary judgment motion. Defendants’ Objection number 5

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addresses plaintiff’s statement in his response to defendants’ Undisputed Fact No. 9. Plaintiff

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states: “[I]t was common knowledge among (HDSP) African-American inmate population of

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Yard A, that Officer McBride was known to use racial slurs and comments towards Black

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inmates, of which the Plaintiff is one.” This statement lacks foundation and, at best, is

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marginally relevant, and constitutes improper and prejudicial character evidence. Fed. R. Evid.

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403, 404.

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Defendants’ remaining evidentiary objections are overruled.
III.

Summary Judgment Standard
Summary judgment is appropriate when there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary

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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant

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to the determination of the issues in the case, or in which there is insufficient evidence for a jury

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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600

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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.

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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a

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jury.

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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to

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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,

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under summary judgment practice, the moving party bears the initial responsibility of presenting

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the basis for its motion and identifying those portions of the record, together with affidavits, if

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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477

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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving

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party meets its burden with a properly supported motion, the burden then shifts to the opposing

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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

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Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

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A clear focus on where the burden of proof lies as to the factual issue in question is

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crucial to summary judgment procedures. Depending on which party bears that burden, the party

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seeking summary judgment does not necessarily need to submit any evidence of its own. When

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the opposing party would have the burden of proof on a dispositive issue at trial, the moving

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party need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National

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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters

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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-

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24 (1986). (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive

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issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,

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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails

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to make a showing sufficient to establish the existence of an element essential to that party’s
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case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a

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circumstance, summary judgment must be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56[(a)],

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is satisfied.” Id. at 323.

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To defeat summary judgment the opposing party must establish a genuine dispute as to a

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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s)

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that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S.

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at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing

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law will properly preclude the entry of summary judgment.”). Whether a factual dispute is

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material is determined by the substantive law applicable for the claim in question. Id. If the

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opposing party is unable to produce evidence sufficient to establish a required element of its

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claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning

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an essential element of the nonmoving party’s case necessarily renders all other facts

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immaterial.” Celotex, 477 U.S. at 322.

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Second, the dispute must be genuine. In determining whether a factual dispute is genuine

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the court must again focus on which party bears the burden of proof on the factual issue in

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question. Where the party opposing summary judgment would bear the burden of proof at trial

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on the factual issue in dispute, that party must produce evidence sufficient to support its factual

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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit

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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue

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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to

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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such

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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,

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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

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The court does not determine witness credibility. It believes the opposing party’s

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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;

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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the

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proponent must adduce evidence of a factual predicate from which to draw inferences. American

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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J.,

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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts

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at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441

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(9th Cir. 1995). On the other hand,“[w]here the record taken as a whole could not lead a rational

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trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,

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475 U.S. at 587 (citation omitted); Celotex., 477 U.S. at 323 (If the evidence presented and any

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reasonable inferences that might be drawn from it could not support a judgment in favor of the

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opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any

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genuine dispute over an issue that is determinative of the outcome of the case.

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Concurrent with the instant motion, defendant advised plaintiff of the requirements for

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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dckt. No. 60;

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see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.

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1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409

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(9th Cir. 1988).

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IV.

Analysis

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A.

Excessive Force Claim

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Defendant Martin seeks summary adjudication of plaintiff’s excessive force claim against

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him. (Defendant Blauser does not seek summary adjudication of plaintiff’s excessive force

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claim against her.).

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“When prison officials use excessive force against prisoners, they violate the inmates’

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Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298

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F.3d 898, 903 (9th Cir. 2002). In order to establish a claim for the use of excessive force in
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violation of the Eighth Amendment, a plaintiff must establish that prison officials applied force

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maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or

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restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination,

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the court may evaluate (1) the need for application of force, (2) the relationship between that

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need and the amount of force used, (3) the threat reasonably perceived by the responsible

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officials, and (4) any efforts made to temper the severity of a forceful response. Id. at 7.

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Defendant Martin argues that plaintiff’s complaint lacks facts showing excessive force on

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defendant Martin’s part. Defendant Martin notes that plaintiff indicated in his deposition

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testimony that he sought to impose liability on defendant Martin for failing to intervene to stop

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defendant Blauser’s excessive force. According to defendant Martin, “[t]here is no Eighth

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Amendment failure-to-protect claim before the Court . . . . Plaintiff did not pursue such a claim

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in his complaint, and the Court did not find one during its screening.” Dckt. No. 59-1 at 11.

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Plaintiff, however, points out that he did, in fact, state facts showing excessive force by

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defendant Martin. Plaintiff’s complaint alleges that defendant Martin, along with defendant

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Blauser, dragged and jerked plaintiff across an uneven yard while ignoring plaintiff’s protests

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that this manner of transport would injure his replacement knee. Dckt. No. 1 at 5. Defendants

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concede that plaintiff’s allegations that defendants pulled, snatched, or moved too quickly across

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the yard are “potentially relevant to Plaintiff’s excessive force claim.” Dckt. No. 59-1 at 13. In

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addition, plaintiff alleged generally that defendant Martin failed to take action to prevent a

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constitutional violation he knew was taking place. Dckt. No. 1 at 12.

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Further, even if plaintiff had not alleged conduct by defendant Martin that could amount

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to excessive force and had not alleged that defendant Martin failed to prevent a constitutional

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violation, defendants’ argument presumes that there exists a free-standing “failure-to-intervene”

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claim that is separate from plaintiff’s excessive force claim and thus must be separately pleaded

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and identified at screening. This court disagrees. A defendant is liable for failing to intervene

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only where there has been an underlying constitutional violation warranting intervention. The
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failure to intervene is a theory of liability that derives meaning from the underlying violation

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(here, excessive force), not a separate claim. Lynch v. Barrett, No. 09-cv-00405-JLK-MEH,

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2010 U.S. Dist. LEXIS 65512, at *19-20 (D. Colo. June 9, 2010). Accordingly, the failure of the

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complaint or screening order to identify or delineate a cognizable “failure to intervene” claim

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separately from plaintiff’s excessive force claim does not prevent plaintiff from seeking to

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impose liability on defendant Martin for failing to intervene to stop defendant Blauser’s

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excessive force. It is enough that the facts alleged in the complaint show that defendant Martin

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failed to intervene to prevent defendant Blauser’s unconstitutional conduct.

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B.

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Deliberate Indifference Claim

Both defendants seek summary adjudication of plaintiff’s claim that they were

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deliberately indifferent to his serious medical needs during the interaction that occurred on May

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3, 2010. To establish a violation of the Eighth Amendment based on inadequate medical care,

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plaintiff must show “acts or omissions sufficiently harmful to evidence deliberate indifference to

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serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need is

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one that significantly affects an individual’s daily activities, an injury or condition a reasonable

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doctor or patient would find worthy of comment or treatment, or the existence of chronic and

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substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),

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overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir. 1997) (en

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banc). To act with deliberate indifference, a prison official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he must

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also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is

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liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk

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by failing to take reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official

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acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842.

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Defendants first argue that the undisputed facts show that they took reasonable measures

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to abate the risk plaintiff faced in traversing the yard without his cane because: (1) they needed

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to take the cane as a security precaution, and (2) they held plaintiff “securely by his biceps and

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maintained control of him throughout the escort” after they took the cane. Dckt. No. 59-1 at 8.

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Viewing the evidence in the light most favorable to plaintiff, however, there is a dispute over

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whether defendants acted reasonably with regard to plaintiff’s disabled knee. Plaintiff disputes

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that his behavior justified defendant Blauser confiscating his cane and restraining him with

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handcuffs. Dckt. No. 63 at 5-6. More importantly, even if defendant Blauser was justified in

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doing so, plaintiff’s evidence is that, once he was restrained, defendants dragged him across

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uneven terrain in such a manner that it endangered his replacement knee and caused him to

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stumble and jerk uncontrollably. Dckt. No. 1 at 5. While defendants assert that these facts are

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relevant only to plaintiff’s excessive force claim, they present no authority or argument

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supporting that assertion. Indeed, plaintiff’s proffered facts are in direct contradiction to

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defendants’ claim that they should not be held liable for deliberate indifference because “they

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eliminated any risk of harm to Plaintiff based on his medical condition.” Dckt. No. 59-1 at 8.

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Lastly, defendants argue that they should be granted qualified immunity from liability for

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deliberate indifference because the law in May 2010 did not give defendants fair notice that

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confiscating plaintiff’s cane and using waist-chain restraints under the circumstances would

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amount to a constitutional violation. Defendants cite Kwanzaa v. Brown, No. 05-5976 (RMB),

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2009 U.S. Dist. LEXIS 107563, at *68-69 (D. N.J. Nov. 17, 2009) and Robinson v. Catlett, 725

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F. Supp. 2d 1203, 1209 (S.D. Cal. 2010) in support of this argument. Defendants over-

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generalize in their reading of Kwanzaa and its applicability here.

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In Kwanzaa, the court granted summary judgment to defendants on plaintiff’s claim that

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they had wrongfully confiscated his cane when plaintiff did not dispute that he had threatened to

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physically harm defendants. 2009 U.S. Dist. LEXIS 107653 at *68-69. Kwanzaa indicates that

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a correctional officer’s determination to confiscate the cane of a disabled inmate is reasonable
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where the inmate threatens to harm another. In the instant case, however, defendants do not

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claim that plaintiff threatened to harm them. Rather, they claim that defendant Blauser perceived

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plaintiff’s behavior (arguing and refusing to return to his cell) as posing a security risk. Dckt.

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No. 59-3, Decl. of Blauser at ¶¶ 5-9.

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Similarly, in Robinson, the court granted summary judgment to defendants on plaintiff’s

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claim that they had wrongfully confiscated his cane where the undisputed facts showed that

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plaintiff had attempted to strike another inmate with his cane. 725 F. Supp. 2d at 1209. Again,

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this case indicates that confiscation of an inmate’s cane is reasonable where the inmate shows an

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intent to harm another, but here there is no dispute that plaintiff did not threaten or attempt to

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harm defendants or anyone else.

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Further, defendants’ qualified immunity argument misses a crucial point — plaintiff does

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not only challenge the confiscation of his cane and his placement in handcuffs, but also the

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manner by which he was escorted across the prison yard. He says that during the escort he

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stumbled over a three to five inch lift on the ground. He also says that as he stumbled defendant

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Blauser yelled “He’s resisting,” and took plaintiff to the ground and then kneed him in the ribs,

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on his replacement knee, and on his head, and punched him in the face three to five times, until

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relief officers arrived. Defendants offer no argument or caselaw showing that the state of the law

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in May 2010 was such that a reasonable officer would not have been put on notice that dragging

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or pulling a disabled inmate across uneven terrain in a manner such that the inmate stumbles and

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jerks uncontrollably could amount to deliberate indifference or gratuitous force and pain in

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violation of the Eighth Amendment.

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V.

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Recommendation
For all of the above reasons, it is hereby RECOMMENDED that the September 21, 2012

motion for summary judgment (Dckt. No. 59) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 4, 2013.

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