Hymes v. Bliss et al

Filing 121

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 82 Motion for Summary Judgment; denying 97 Administrative Motion to File Under Seal. (ahm, COURT STAFF) (Filed on 11/13/2018)

Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 1 of 18

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SCANVINSKI JEROME HYMES,

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Plaintiff,

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v.

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MILTON BLISS, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No.16-cv-04288-JSC
ORDER RE: DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT;
PLAINTIFF’S ADMINISTRATIVE
MOTION TO FILE UNDER SEAL
Re: Dkt. Nos. 82, 97

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Plaintiff Scanvinski Jerome Hymes brings suit against five current or former San Francisco

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Deputy Sheriffs (collectively, “Defendants”) for the use of excessive force on July 24, 2014 while

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he was incarcerated at the San Francisco County jail.1 (Dkt. No. 43.)2 Now pending before the

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Court are Defendants’ motion for summary judgment, (Dkt. No. 82), and Plaintiff’s administrative

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motion to file under seal portions of its opposition to summary judgment and a related exhibit,

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(Dkt. No. 97). After careful consideration of the parties’ briefing, and having had the benefit of

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oral argument on November 9, 2018, the Court GRANTS in part and DENIES in part Defendants’

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motion for summary judgment, and DENIES Plaintiff’s administrative motion to file under seal.3
BACKGROUND

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I.

The Parties
Plaintiff is an inmate at the San Francisco County Jail, where he has been detained on

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Plaintiff’s amended complaint brought suit against seven current or former Sheriff’s deputies.
(Dkt. No. 43.) By stipulation filed November 12, 2018, Plaintiff voluntarily dismissed all claims
against Victor M. Sanchez and Joseph A. Leonardini. (Dkt. No. 118.)
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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 1 at 4 & 21.)

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felony criminal charges since July 21, 2014.
Defendants are current or former San Francisco Deputy Sheriffs who were working at the

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County Jail on July 24, 2014, the date of the incident at issue.

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II.

The Incident
The following facts are undisputed. On the morning of July 24, 2014, Plaintiff was yelling

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insults at deputies while inside his cell. Defendant Sergeant Milton Bliss approached Plaintiff’s

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cell and pepper-sprayed him. Plaintiff used a bedsheet to shield himself from the spray. Sergeant

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Bliss then called for a Special Operations Response Team (“SORT”) to remove Plaintiff from his

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cell and take him to the medical unit.
The SORT, which included the remaining Defendants, mobilized and stood outside of

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United States District Court
Northern District of California

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Plaintiff’s cell. Sergeant Bliss ordered Plaintiff to “cuff up” and a non-party deputy applied

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handcuffs and leg restraints to Plaintiff through his cell port. Defendants did not issue any verbal

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commands to Plaintiff after he was handcuffed and shackled. Sergeant Bliss then directed the

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non-party deputy to open the cell door and directed the SORT to remove Plaintiff. Defendants

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Neu, Timpano, Jones, and Gray then entered Plaintiff’s cell and took him to the ground. Plaintiff

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sustained facial injuries while in his cell. A little over a minute later, the four Defendants in the

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cell removed Plaintiff from his cell at the direction of Sergeant Bliss. Defendants then took

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Plaintiff to the medical unit. Plaintiff refused treatment, and medical unit personnel directed

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Defendants to take Plaintiff to San Francisco General Hospital to treat his injuries.

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Certain Defendants took Plaintiff from the medical unit to an interview room where they

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left Plaintiff alone. Shortly thereafter, certain Defendants took Plaintiff to a processing room to

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change out his restraints and clothing for transfer to the hospital. While changing Plaintiff’s

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restraints, a Defendant performed a leg sweep on Plaintiff and took him to the floor. Plaintiff was

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then taken to the hospital where he was examined and treated for injuries to his face and head.

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Plaintiff was returned to jail that afternoon.

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III.

Procedural History

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On the day following the incident, July 25, 2014, Plaintiff submitted a Prisoner Grievance

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Form detailing his account of the incident. (Dkt. No. 1 at Exh. A.) Two years later, Plaintiff filed
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his initial complaint under 42 U.S.C. § 1983 against Sergeant Bliss, Victor Sanchez, Joseph

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Leonardini, Scott Neu, Eugene Jones, Paul Timpano, and Pierre Gray. (Dkt. No. 1.)
Plaintiff subsequently filed an amended complaint, bringing the following causes of action:

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(i) violation of 42 U.S.C. § 1983 against Defendants Bliss, Neu, Jones, Timpano, and Gray for

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excessive use of force; and (ii) violation of 42 U.S.C. § 1983 against Defendants Bliss, Neu,

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Jones, Timpano, Gray, Leonardini, and Sanchez for failure to intervene. (Dkt. No. 43 at ¶¶ 27-

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32.) On November 12, 2018, Plaintiff voluntarily dismissed all claims against Defendants

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Leonardini and Sanchez. (Dkt. No. 118.)
Defendants filed the instant motion for summary judgment on September 21, 2018. (Dkt.

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No. 82.) Plaintiff’s opposition, (Dkt. No. 96), and Defendants’ reply, (Dkt. No. 106), followed.
DISCUSSION

United States District Court
Northern District of California

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I.

Motion for Summary Judgment
Exhaustion of Administrative Remedies4

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A.

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Defendants argue that they are entitled to summary judgment because Plaintiff has not

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exhausted his administrative remedies. On the record before it, the Court is not persuaded that

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“that there is no genuine dispute as to any material fact” and that Defendants are thus “entitled to

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judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002).
“Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead

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and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v. Bock, 549

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Defendants filed an administrative motion on November 6, 2018—three days before the hearing
on Defendants’ motion for summary judgment—seeking leave to file a declaration in support of
their reply regarding the issue of exhaustion. (Dkt. No. 113.) The Court denies the motion as
untimely; further, the proffered evidence would not change the Court’s exhaustion analysis.
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U.S. 199, 204 (2007)). In carrying its burden, the defendant must first “prove that there was an

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available administrative remedy.” Albino, 747 F.3d at 1172. If the defendant does so, “the burden

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shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable,

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unduly prolonged, inadequate, or obviously futile.” Id. (internal citation omitted). “However, . . .

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the ultimate burden of proof remains with the defendant.” Id. As with all other issues on

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summary judgment, the “court must view all of the facts in the record in the light most favorable

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to the non-moving party.” Id. at 1173.
San Francisco Sheriff’s Department policy requires prisoner grievances against staff to be

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forwarded “directly to the Facility Commander.” (Dkt. Nos. 84 at ¶ 5; 84-1, Ex. A at 3.) “If the

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prisoner is not satisfied with the Facility Commander’s response, the prisoner can appeal to the

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United States District Court
Northern District of California

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Custody Division Commander.” (Dkt. No. 84 at ¶ 5.) The Custody Division Commander’s

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decision “completes the appeals process and is final.” (Id. at ¶ 6.) “If a prisoner does not receive

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a response to a grievance filed within thirty days, he/she shall assume his/her administrative

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remedies have been exhausted.” (Dkt. No. 84-1, Ex. A at 3.)
Here, Plaintiff filed a formal grievance with the San Francisco County Jail on July 25,

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2014, the day after the incident. (Dkt. No. 84-2, Ex. B at 2.)5 The next day, “Supervisor Lt.

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Minor” responded in writing to Plaintiff. (Dkt. Nos. 84 at ¶ 7; 84-2, Ex. B at 2.) Lt. Minor’s

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response states:

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I spoke to Mr. Hymes. He said he submitted this grievance to
exhaust his local remedies. He feels the force was excessive, and
wants to refer the issue to his Attorney. He also wants an I.A.
investigation as well. I will refer to ISU.

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(Dkt. No. 84-2 at 2.) Plaintiff signed the form that day and checked the box indicating that he was

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“Satisfied With Response.”6 (Id.) The form was then forwarded to the Facility Commander, and

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The grievance form submitted by Plaintiff, (see Dkt. No. 84-2, Ex. B), differs from the model
forms attached to the declaration of Lt. John Caramucci, submitted in support of Defendants’
motion for summary judgment, (see Dkt. No. 84-1, Ex. A at 6-7.) Unless otherwise noted, the
Court’s discussion of the “grievance form” concerns only the form submitted by Plaintiff.
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The form includes a box directly next to the one checked by Plaintiff, indicating “Prisoner
Appeal.” (Dkt. No. 84-2 at 2.)
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on July 29, 2014, the Facility Commander responded to Plaintiff in writing with the following:

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As we discussed in my interview with you, this incident will be
forwarded for review in terms of the level of Force used. You
committed to me that you would be less antagonistic towards
inmates and staff. In 30 days I will review all discipline issued . . .
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(Id.) The Facility Commander checked a box indicating “Upheld Grievance Response.” (Id.)

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There was no box indicating that Plaintiff could appeal the Facility Commander’s response, nor is

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there a signature from Plaintiff. There is no evidence indicating that the Facility Commander

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responded to Plaintiff within 30 days or at any time thereafter regarding Plaintiff’s grievance. 8

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Plaintiff filed his complaint in federal court on July 28, 2016, nearly two years to the day after the

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Facility Commander’s response.
On September 12, 2016, the Internal Affairs Unit sent Plaintiff a letter stating:

United States District Court
Northern District of California

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This office received your complaint against members of the San
Francisco Sheriff’s Department regarding an incident that occurred
on or about July 24, 2014 at CJ#4. Your complaint primarily alleged
misconduct/use of force by staff members. An investigation was
conducted and relevant information collected.

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The completed case was forwarded for administrative review. After
a full review of the case, the allegation against the staff members
was not sustained.

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(Dkt. No. 85-1, Ex. A at 2.)
Defendants argue that because Plaintiff did not appeal the Facility Commander’s response,

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but instead indicated on the form that he was “[s]atisfied,” demonstrates that Plaintiff failed to

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exhaust all available administrative remedies.9 The Court is not persuaded. Construing the

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The text of the Facility Commander’s response continues but is cut off at the bottom of the form.
(Dkt. No. 84-2 at 2.)
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Plaintiff testified that the Facility Commander “told [him] that she would review the matter and
get back to [him] in 30 days,” but Plaintiff did not “hear back from her or receive any further
information about [his] grievance.” (Dkt. No. 96-1 at ¶ 26.) Defendants offer no evidence
indicating that the Facility Commander subsequently contacted Plaintiff—by written response or
otherwise.
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Defendants further argue that Plaintiff failed to exhaust his administrative remedies because
“other administrative relief was potentially available to [Plaintiff],” including transferring Plaintiff
to another facility or transferring the deputies involved. (Dkt. No. 84 at ¶ 8) (emphasis added.)
This argument is unavailing, because none of those “potential” remedies are listed in the
Department’s grievance policy and procedure, (see Dkt. No. 84-1, Ex. A), nor are they indicated
on the grievance form itself, (see Dkt. No. 84-2, Ex. B.). See Brown, 422 F.3d at 940-41 (rejecting
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evidence in the light most favorable to Plaintiff, there is a genuine dispute of material fact as to

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whether Plaintiff exhausted the administrative remedies available to him as outlined in the

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Department’s grievance policy and procedure. See Murphy v. Schneider Nat’l, Inc., 362 F.3d

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1133, 1138 (9th Cir. 2004) (noting that courts must draw “all reasonable inferences [and] resolve

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all factual conflicts in favor of the non-moving party.”).

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In support of their motion for summary judgment, Defendants submit the declaration of Lt.

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John Caramucci, who is responsible for overseeing the filing of, and reviewing the responses to

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prisoner complaints against staff. (Dkt. No. 84 at ¶ 3.) Lt. Caramucci characterizes the review

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conducted by Lt. Minor as a “first level of review,” and acknowledges that “[f]ollowing this first

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level of review, [Plaintiff] checked ‘Satisfied with Response’ and signed the form.” (Id. at ¶ 7.)

United States District Court
Northern District of California

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The grievance form supports Lt. Caramucci’s characterization. However, the record

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indicates only that Plaintiff was “satisfied” with the preliminary review and response on July 26,

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2018, as described by Lt. Minor on the grievance form (i.e., recognizing that Plaintiff wanted to

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exhaust his local remedies, and forwarding the complaint to Internal Affairs). In other words,

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Plaintiff did not wish to appeal Lt. Minor’s initial response before the complaint was forwarded to

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the Facility Commander, as required for complaints against staff. The record does not similarly

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suggest that Plaintiff was “satisfied” with the Facility Commander’s response; instead, the form

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indicates that the Facility Commander would have the incident reviewed for the level of force

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used, and “review all discipline issued” within 30 days; it is undisputed that Plaintiff did not

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receive a definitive response regarding his grievance until the September 2016 letter from the

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Internal Affairs Unit. The Department’s grievance policy provides that “[i]f the prisoner is not

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satisfied with the Facility Commander’s response, the prisoner can appeal to the Custody Division

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Commander.” (Dkt. No. 84 at ¶ 5.) However, there was no space on Plaintiff’s grievance form for

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him to do so. Further, Plaintiff never received a definitive response from the Facility Commander

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from which he could seek an appeal; instead, the Facility Commander stated that the “incident will

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similar argument where the defendant failed to provide evidence that such remedies were in fact
“available.”).
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be forwarded for review in terms of the level of force used.” (Dkt. No. 84-2, Ex. B at 2.)

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Plaintiff testified that “[n]o one told [him] about an appeals process for [his] grievance.”

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(Dkt. No. 96-1 at ¶ 27.) And although the grievance form provides a box for “Prisoner Appeal”

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following the preliminary “Supervisor’s Response,” it does not provide a similar box to elect to

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appeal following the Facility Commander’s response. Such evidence is relevant in determining

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whether an appeal was effectively available to Plaintiff. See Brown v. Valoff, 422 F.3d 926, 937

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(9th Cir. 2005) (“[I]nformation provided the prisoner is pertinent [regarding exhaustion] because it

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informs our determination of whether relief was, as a practical matter, ‘available.’”) In light of

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this evidence, the Court cannot conclude as a matter of law that Plaintiff failed to exhaust the
administrative remedies available to him. The Court must instead infer that Plaintiff attempted to

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United States District Court
Northern District of California

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exhaust his local remedies and did not receive a definitive response within the 30 days promised

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by the Facility Commander and mandated by Department policy, and thus, believed no other

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remedies were available.

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Further, even if Defendants did satisfy their initial burden of demonstrating that there was

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an available administrative remedy, the record reflects that any such relief was unduly prolonged

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because Plaintiff filed suit nearly two years to the day after the Facility Commander’s assurance

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that she would review the matter within 30 days. See Brown, 422 F.3d at 943 n.18 (“[F]ailure to

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respond to a grievance within the time limits contained in the grievance policy renders an

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administrative remedy unavailable.”) (internal quotation marks and citation omitted). Indeed,

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Department policy provides that “If a prisoner does not receive a response to a grievance filed

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within thirty days, he/she shall assume his/her administrative remedies have been exhausted.”

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(Dkt. No. 84-1, Ex. A at 3.) Defendants’ argument that Plaintiff failed to exhaust his

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administrative remedies because he filed suit before the Department notified him of the results of

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the Internal Affairs investigation is similarly unavailing. Citing Brown v. Valoff,10 Defendants

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argue that because Plaintiff “did not wait to learn the results” of the investigation, the PLRA bars

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Brown v. Valoff involved two prisoner-plaintiffs—Brown and Hall. See generally 422 F.3d 926.
Defendants cite only “to the portion of the opinion about Hall.” (Dkt. No. 106 at 11 n.5.)
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his claim. (Dkt. No. 82 at 18.) Brown is readily distinguishable, however, in that the pertinent

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plaintiff in that case, Hall, received a response memorandum on second-level review of his

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grievance stating, in pertinent part:

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[Y]our appeal is denied at the second level of review. If you are
dissatisfied with this decision, you may complete section ‘H’ of your
appeal and forward it for further review by following the directions
on the back of your appeal form.

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Brown, 422 F.3d at 933 (emphasis added). Thus, Hall was given express notice that further

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administrative review of his appeal was available. Hall did not seek further administrative review,

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but instead, filed a complaint in federal court. Id. Over a year later, the internal affairs
“investigation ordered as a result of Hall’s second level review was completed.” Id. at 934. The

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United States District Court
Northern District of California

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district court determined that Hall met the exhaustion requirement because the internal affairs

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investigation provided the relief sought through his grievance. Id.

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The Ninth Circuit reversed on two grounds. Id. at 940-41. First, the court concluded that

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“both a reasonable interpretation of the responses made to Hall and the Department’s actual

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practices as reflected in the governing directives indicate that, as to certain aspects of Hall’s

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grievance, some relief might have been available had he pursued his third level appeal.” Id. at

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942. Second, the court concluded that because “Hall did not await the completion of the staff

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misconduct investigation before filing his complaint in district court,” defendants had “met their

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burden of demonstrating that Hall did not exhaust” his available administrative remedies. Id. at

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943. Importantly, the Brown court had earlier concluded—in discussing the exhaustion inquiry

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related to plaintiff Brown—that an internal affairs investigation offered complete relief for staff

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complaints, citing the department’s administrative bulletins and “second level response

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memorandum” sent to Brown; thus, “no further relief was ‘available’ other than the staff

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complaint investigation [by internal affairs] and (confidential) result.” Id. 937-38.

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Here, there is no such indication of the Internal Affairs investigation’s import to the

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exhaustion inquiry in either the grievance policy or the responses given to Plaintiff on the

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grievance form. The policy itself does not discuss Internal Affairs’ role in investigating staff

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complaints, and the “Grievance Routing Chart” instead indicates that complaints against staff are
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assigned solely to the Facility Commander, and appealed solely to the Custody Division Chief.

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(Dkt. No. 84-1, Ex. A at 2-8.) Thus, even if Plaintiff had waited for the results of the Internal

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Affairs investigation, those results appear to have no bearing on the Facility Commander’s

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determination regarding the complaint against staff, and under the Department’s policy, only that

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determination can be appealed to the Custody Division Chief to “complete[ ] the appeals process.”

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(Dkt. Nos. 84 at ¶¶ 5-6; 84-1, Ex. A at 8.) In other words, the Internal Affairs investigation did

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not provide the same administrative relief available through the formal grievance process. See

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Panaro v. City of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005) (recognizing the distinction

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between a department’s formal administrative grievance procedure and its internal affairs
investigation for purposes of exhaustion, and holding that the latter “does not by itself satisfy the

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United States District Court
Northern District of California

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exhaustion requirement of the PLRA.”).

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Further, unlike in Brown, the responses given to Plaintiff by Lt. Minor and the Facility

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Commander do not give rise to a reasonable inference that an Internal Affairs investigation was a

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prerequisite to exhausting administrative remedies, or the only remedy available for staff

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complaints. Lt. Minor’s response noted that Plaintiff “submitted [his] grievance to exhaust his

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local remedies[,]” and Plaintiff “also wants an [Internal Affairs] investigation as well.” (Dkt. No.

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84-2, Ex. B at 2 (emphasis added).) The Facility Commander’s response does not mention the

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Internal Affairs investigation, but states only that the “incident will be forwarded for review in

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terms of the level of force used.” (Id.)

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Viewing the record in the light most favorable to Plaintiff, the administrative remedy

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available through the grievance process was, as a practical matter, unavailable to Plaintiff because

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he never received a definitive determination from the Facility Commander. Thus, the Court

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cannot conclude—as a matter of law—that Plaintiff failed to exhaust all available administrative

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remedies because he filed suit before receiving the results of the Internal Affairs investigation.

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B.

Disputes of Material Fact as to Excessive Force and Failure to Intervene

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To prove an excessive force claim under Section 1983, “a pretrial detainee must show only

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that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley

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v. Hendrickson, 134 S. Ct. 2466, 2473 (2015). “A court must make this determination from the
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perspective of a reasonable officer on the scene, including what the officer knew at the time, not

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with the 20/20 vision of hindsight.” Id. Because this standard is purely objective, “it does not

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matter whether the defendant understood that the force used was excessive or intended it to be

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excessive.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016). A non-exhaustive

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list of considerations that may bear on the reasonableness of the force used includes “the

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relationship between the need for the use of force and the amount of force used; the extent of the

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plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the

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severity of the security problem at issue; the threat reasonably perceived by the officer; and

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whether the plaintiff was actively resisting.” Kingsley, 135 S. Ct. at 2473.
Officers may also be held liable under Section 1983 when their fellow officers use

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United States District Court
Northern District of California

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excessive force if they have an “opportunity to intercede” but fail to do so. Cunningham v. Gates,

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229 F.3d 1271, 1289-90 (9th Cir. 2000).

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Defendants argue that they are entitled to summary judgment on the merits of Plaintiff’s

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claims because: (1) Defendants used reasonable force at all times; (2) the Defendants who are not

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alleged to have used force against Plaintiff did not witness excessive force used by other

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Defendants and thus did not fail to intervene; (3) Defendants are entitled to qualified immunity;

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and (4) Plaintiff alleges no physical injury arising from the pepper spray or processing room

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incidents and cannot thus claim emotional injury for same. Because Plaintiff’s claims arise out of

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separate incidents involving different levels of alleged participation by individual Defendants, the

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Court addresses each incident in turn.
1.

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Pepper Spray

It is undisputed that Sergeant Bliss pepper sprayed Plaintiff twice on the morning of July

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24, 2014, while Plaintiff was locked in his cell. It is further undisputed that Plaintiff did not suffer

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any injury as a result because he blocked the spray and it did not contact him. At the hearing on

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November 9, 2018, Plaintiff represented that he is not pursuing an excessive force claim related to

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the pepper spray incident. Accordingly, the Court grants summary judgment as to the pepper

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spray incident.

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2.

Cell Extraction
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Plaintiff alleges that certain Defendants11 punched him multiple times in the head and

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kicked him in the face during the cell extraction. Defendants deny punching or kicking Plaintiff,

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or witnessing any deputy doing so during the cell extraction.12 It is undisputed that Plaintiff was

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handcuffed and in leg restraints prior to Defendants Neu, Timpano, Jones, and Gray entering his

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cell. It is also undisputed that Plaintiff sustained injuries to his head and face during the cell

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extraction.
Simply put, the video footage of the cell extraction is inconclusive, (see Dkt. No. 83-1, Ex.

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A), and thus in light of Plaintiff’s testimony the Court cannot say as a matter of law that

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Defendants Neu, Timpano, Jones, and Gray—at the direction of the scene commander, Sergeant
Bliss—did not use excessive force in taking Plaintiff to the ground and removing him from his

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United States District Court
Northern District of California

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cell. A reasonable trier-of-fact could find that any use of force in taking Plaintiff to the ground

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was excessive given the circumstances (i.e., Plaintiff was handcuffed, in leg restraints, had his

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back to the cell door, and Defendants did not issue any verbal commands to him prior to the cell

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extraction). See Lolli v. Cty. of Orange, 351 F.3d 410, 417 (9th Cir. 2003) (“[W]here there is no

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need for force, any force used is constitutionally unreasonable.”) (internal quotation marks and

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citation omitted). Although Plaintiff testified that he is not certain who hit or kicked him, such

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identification is not required to survive summary judgment where the record contains “sufficient

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evidence from which a jury could infer that the individual officers who had physical contact with

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[Plaintiff] participated in the alleged beating.” Id. Here, the video footage, deposition testimony,

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and contemporaneous incident report, (Dkt. No. 83-9, Ex. I at 2), give rise to a reasonable

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inference that Defendants Neu, Timpano, Jones, and Gray “were involved in the altercation and

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that they exerted some physical force on [Plaintiff] to create the necessary inference that the

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deputies were integral participants in the alleged unlawful act.” See id. (internal quotation marks

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and citation omitted).

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Plaintiff testified that Defendants Gray, Jones, Neu, and Timpano entered his cell to conduct the
extraction. (Dkt. No. 96-3, Ex. 1 at 28:14-20.)
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During his deposition, Defendant Jones invoked his Fifth Amendment right against selfincrimination in response to questioning regarding the cell extraction and Sheriff’s Department
policies. (Dkt. No. 96-11, Ex. 9 at 12:8-29:22, 44:5-45:24, 46:13-48:6.)
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Plaintiff does not allege that Sergeant Bliss personally used excessive force during the cell

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extraction, and the video footage shows that he was not physically involved. However, “[a]

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supervisor may be held liable under § 1983 if he or she was personally involved in the

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constitutional deprivation or a sufficient causal connection exists between the supervisor’s

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unlawful conduct and the constitutional violation.” Lolli, 351 at 418. There is no dispute that

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Sergeant Bliss was the scene commander and gave the direction to the SORT to enter Plaintiff’s

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cell and remove him. Thus, Sergeant Bliss’s order to enter the cell “is sufficient involvement in

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the alleged unconstitutional violation such that summary judgment in his favor [is] inappropriate.”

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Id.

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As for the failure to intervene claim against all Defendants, the video footage indicates that

United States District Court
Northern District of California

11

all Defendants were present and in the immediate vicinity of the cell during the incident. The

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video shows that Plaintiff complied with Sergeant Bliss’s orders to “cuff up,” and was placed in

13

handcuffs and leg restraints while still locked in his cell. And although Plaintiff was yelling prior

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to SORT entering his cell, the video shows that he was standing still with his back to the cell door

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when they entered. Whether or not all Defendants could see precisely what transpired inside the

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cell after the four deputies entered and took Plaintiff to the ground, all Defendants were either

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inside the cell or directly in front of it, all Defendants knew that Plaintiff was in handcuffs and

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restraints prior to the cell extraction, all Defendants were aware that Plaintiff was taken to the

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ground, and all Defendants could hear the struggle that ensued. Thus, if in fact the force used was

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excessive, a reasonable trier-of-fact could find that all Defendants had an opportunity to intervene

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but failed to do so. See Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995).

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Defendants’ citation to Stribling v. Picazo, No. 15-cv-03337-YGR (PR), 2017 WL 956657

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(N.D. Cal. Mar. 13, 2017) is unavailing. In Stribling, the prisoner-plaintiff brought excessive

24

force claims against 11 correctional officers arising from a cell extraction, including the officer

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who “worked as a control booth operator” for the plaintiff’s housing unit. 2017 WL 956657, at

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*10. The plaintiff alleged that the officer could have “prevented [the] whole incident . . . by not

27

allowing [d]efendants into his cell,” and was thus “liable because [the officer] had a realistic

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opportunity to intervene and prevent or curtail the violation but failed to do so.” Id. The evidence
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Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 13 of 18

1

showed that the officer’s only involvement in the incident was opening the plaintiff’s cell door

2

from inside the control booth at the direction of another officer. Id. (emphasis added). The

3

control booth officer testified that he “could not see anything past [the] point” of the other officers

4

entering the cell. The court concluded that summary judgment was warranted because “the

5

evidence presented [did] not create a dispute of fact as to whether [the control booth officer] knew

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or had a reason to know that [the plaintiff’s] constitutional rights were being violated or show that

7

he had an opportunity to intercede.” Id. (citing Cunningham, 229 F.3d at 1289).

8

Here, all Defendants were in the immediate vicinity of Plaintiff’s cell and mere feet from
the cell door. Thus, the physical separation present in Stribling is not at issue, and given

10

Defendants’ close proximity a reasonable trier of fact could infer that all Defendants were

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Northern District of California

9

percipient witnesses who had an opportunity to intercede.

12

Defendants’ argument regarding qualified immunity as to the cell extraction also fails to

13

persuade because it is based on Defendants’ version of events. See Blankenhorn v. City of

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Orange, 485 F.3d 463, 471 (9th Cir. 2007) (noting that defendants are entitled to qualified

15

immunity “only if the facts alleged and the evidence submitted, resolved in [the plaintiff’s] favor

16

and viewed in the light most favorable to him, show that their conduct did not violate a federal

17

right; or if it did, the scope of that right was not clearly established at the time.”) (emphasis

18

added). Because Defendants’ version of events conflicts with Plaintiff’s testimony, and the Court

19

must view the evidence in the light most favorable to Plaintiff, the Court cannot conclude that

20

Defendants are entitled to qualified immunity.

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22
23
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Accordingly, the Court denies summary judgment as to the excessive force and failure to
intervene claims related to the cell extraction.
3.

Processing Room

As for the processing room incident, the Court likewise cannot conclude as a matter of

25

law—based on the record before it—that certain Defendants did not use excessive force before

26

taking Plaintiff to the ground while attempting to change out his restraints. Plaintiff testified that

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28
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Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 14 of 18

1

unknown Defendants13 used excessive force by leaning him over a table and punching him and

2

kicking him in the “rib [and] abdomen area” while he was restrained and before taking him to the

3

ground, and that other Defendants witnessed the use of excessive force. (Dkt. No. 96-3 at 26-27.)

4

Plaintiff does not allege that Defendants used excessive force after he was on the ground.

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Defendants Bliss, Neu, and Timpano—who testified to being present in the processing room

6

before Plaintiff was taken to the ground—insist that they did not punch or kick Plaintiff before

7

taking him to the ground, nor did they witness any Defendant doing so. In the absence of other

8

evidence, the conflicting testimony creates a genuine dispute of material fact that must be resolved

9

at trial.
Defendants argue that Defendants Neu and Timpano are entitled to qualified immunity for

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Northern District of California

11

the force used in the processing room. Again, however, Defendants invoke qualified immunity

12

based on their version of events; specifically, that before being taken to the ground “Plaintiff was

13

[unhandcuffed], on his feet, and trying to break free.” (Dkt. No. 30.) Defendants’ characterization

14

conflicts with Plaintiff’s testimony:

15

Q:

Before you were bent over the table, had the deputies stared
to change your restraints?

A:

No.

Q:

When you were leaning over the table, were the deputies
changing your restraints?

19

A:

No.

20

Q:
the

So it’s your testimony that you were punched leaning over
table before deputies changed your restraints?

A:

Yes.

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17
18

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23
13

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25
26
27
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Plaintiff testified that he “believes” Defendants Bliss, Jones, Neu, and Timpano were present
during the alleged incident in the processing room. (Dkt. No. 83-2 at 38:11-14.) Plaintiff further
testified that he does not know who punched or kicked him. (Id. at 35:2-19.) The testimony of
Defendants Bliss, Neu, and Timpano indicates that they were present in the processing room
during the alleged incident. Sergeant Bliss testified that he and “three or four deputies escorted
[Plaintiff] in[to the processing room].” (Dkt. No. 12:4-9.) Sergeant Bliss’s incident report, filed
the day of the incident, states that “Deputies Timpano, Neu, Gray, Sergeant Sanchez and I
escorted Hymes into the processing room.” (Dkt. No. 83-9 at 3.) Defendants contend that
Defendants Gray and Jones were not present in the processing room at any time.
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Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 15 of 18

Q:

When the deputies were changing your restraints, did you
resist them in any way?

2

A:

No.

3

Q:

Did you try to break free?

4

A:

No.

1

5
6

(Dkt. No. 96-3 at 24:6-20.) Plaintiff further testified that his restraints were changed “after the
punches on the table,” and after being taken to the ground. (Dkt. No. 83-2 at 30:6-25, 32:14-16,

7
33:19-24.) Construing the conflicting testimony in the light most favorable to Plaintiff, the Court
8
cannot conclude as a matter of law that Defendants Neu and Timpano are entitled to qualified
9
immunity.
10
The Court concludes, however, that summary judgment is warranted regarding the
11
United States District Court
Northern District of California

excessive force and failure to intervene claims against Deputy Gray related to the processing room
12
incident. Plaintiff does not allege that Deputy Gray was present, and Deputy Gray testified that he
13
did not witness the alleged incident. Deputy Gray testified that he was instead in front of the
14
deputies escorting Plaintiff to the processing room and that he entered the room first and walked
15

directly out of the room without stopping to get to “the front office.” (Dkt. No. 83-10 at 16-18.)

16
Thus, because there is no evidence that Deputy Gray was in the processing room at the time of the
17
18
19

alleged excessive force, there is no evidence that he had an “opportunity to intercede.” See
Cunningham, 229 F.3d at 1289-90 (“[O]fficers can be held liable for failing to intercede only if
they had an opportunity to intercede.”) (emphasis added).

20
Defendants argue that summary judgment should also be granted to Deputy Jones for all
21
claims related to the processing room incident. The Court disagrees.
22
23

Plaintiff testified that Deputy Jones “[m]ay have been” present, but Plaintiff was “not
sure.” (Dkt. No. 83-2 at 38:13-16.) Deputy Jones exercised his Fifth Amendment rights and did

24
not answer questions related to the processing room. (See Dkt. No. 96-11 at 44:5-15.) None of
25
the Defendants who were present in the processing room at some point—Bliss, Neu, and
26
Timpano—testified that Deputy Jones was present, however, none of those Defendants were
27

specifically questioned on that score. And although Sergeant Bliss’s incident report does not list

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Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 16 of 18

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Deputy Jones as one of the escorting deputies, the incident report is classic hearsay and taken

2

alone is insufficient to prove a fact. See, e.g., Cannon v. United States, No. 15-CV-2582-CAB-

3

BLM, 2017 WL 4792428, at *9 (S.D. Cal. Oct. 24, 2017).

4
5

Accordingly, as to the claims regarding the processing room incident, the Court grants

6

summary judgment for Deputy Gray. The Court denies summary judgment as to the claims

7

against Defendants Bliss, Jones, Neu, and Timpano.
***

8

As with the exhaustion inquiry, Defendants have not met their burden at summary

10

judgment of demonstrating “that there is no genuine dispute as to any material fact” regarding the

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United States District Court
Northern District of California

9

merits of Plaintiff’s claims, and that they are thus “entitled to judgment as a matter of law.” See

12

Fed. R. Civ. P. 56(a). It is not the Court’s function at summary judgment to “weigh the evidence

13

and determine the truth of the matter”; instead, the Court must “determine whether there is a

14

genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (internal quotation marks and

15

citation omitted). Drawing all inferences in Plaintiff’s favor, there are genuine disputes of

16

material fact regarding the force used by certain Defendants during both the cell extraction and the

17

processing room incident. It follows that there is a genuine dispute of material fact as to the

18

failure to intervene claim related to both incidents, because that claim is premised on Defendants

19

witnessing an excessive use of force.

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4.

Emotional Injury from Pepper Spray and Processing Room Incidents

Under the PLRA, a plaintiff must demonstrate “more than de minimis physical injury in

22

order to recover compensatory damages for mental or emotional injury.” Oliver v. Keller, 289

23

F.3d 623, 630 (9th Cir. 2002). Defendants argue that to the extent Plaintiff claims emotional

24

injury stemming from the pepper spray or processing room incidents, that claim fails because

25

Plaintiff denies physical injuries related to those incidents. At the hearing on November 9, 2018,

26

Plaintiff withdrew any claim of emotional injury related to the pepper spray and processing room

27

incidents. Accordingly, the Court grants summary judgment as to emotional injury related to

28

those incidents.
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Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 17 of 18

1

II.

Administrative Motion to File Under Seal

2

Plaintiff seeks to file under seal portions of its opposition to summary judgment that

3

reference San Francisco Sheriff’s Department policies and procedures regarding SORT cell

4

extractions taken from the Custody Operations Division’s policy manual, (see Dkt. No. 96 at 14),

5

and the policy chapter itself (“SORT Policy”), (see Dkt. No. 96-6, Ex. 4). Plaintiff brings its

6

motion pursuant to Civil Local Rule 79-5(e), citing the parties’ amended stipulated protective

7

order, (Dkt. No. 95), and Defendants’ designation of the material as “Highly Confidential” and

8

“Attorneys Eyes Only.” (Dkt. No. 97 at 1-2.) Plaintiff states that he “does not see the necessity of

9

keeping the [SORT Policy] confidential but has submitted Exhibit 4 under seal and redacted
portions of the opposition brief that refer to the substance of the policy in order to comply with the

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United States District Court
Northern District of California

10

protective order.” (Id. at 2.)

12

Local Rule 79-5(e) provides that if, as here, “the Submitting Party is seeking to file under

13

seal a document designated as confidential by the opposing party or a non-party pursuant to a

14

protective order,” the Designating Party (here, Defendants) must file within four days of the

15

Submitting Party’s motion “a declaration as required by subsection 79-5(d)(1)(A) establishing that

16

all of the designated material is sealable.” N.D. Cal. Civ. L.R. 79-5(e)(1). Defendants did not file

17

a declaration in response to Plaintiff’s motion to seal establishing that the materials are sealable, as

18

required by Local Rule 79–5(e)(1).

19
20
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22
23
24

Pursuant to Local Rule 79-5(e)(2):
If the Designating Party does not file a responsive declaration as
required by subsection 79-5(e)(1) and the Administrative Motion to
File Under Seal is denied, the Submitting Party may file the
document in the public record no earlier than 4 days, and no later
than 10 days, after the motion is denied. A Judge may delay the
public docketing of the document upon a showing of good cause.
The stated purpose of the SORT Policy is “[t]o provide direction to deputies and

25

supervisors in all phases of a cell extraction and in the execution of the Special Operations

26

Response Team (S.O.R.T.) team during the movement of a hostile, disruptive or combative

27

inmate.” (Dkt. No. 96-6, Ex. 4.) Given that the material deals with the specific tactics employed

28

by SORT in conducting cell extractions, including “preliminary preparations” and planning and
17

Case 3:16-cv-04288-JSC Document 121 Filed 11/13/18 Page 18 of 18

1

executing the extraction, the Court concludes that delaying the public docketing is warranted.
Defendants shall file a declaration within 10 days of this Order that fully complies with

2
3

Civil Local Rule 79-5(d)(1)(A) and establishes that the designated material is sealable.

4

//
CONCLUSION

5
6

For the reasons set forth above, the Court GRANTS in part and DENIES in part

7

Defendants’ motion for summary judgment. The Court GRANTS summary judgment in favor of

8

Defendants regarding the following:

9

1.

Any claim of excessive force related to the pepper spray
incident.

2.

The excessive force and failure to intervene claims against
Defendant Gray related to the processing room incident.

3.

Claim for emotional injury arising from the pepper spray and
processing room incidents.

10

United States District Court
Northern District of California

11
12
13
14
15

The Court DENIES summary judgment as to all other claims. Further, the Court DENIES
Plaintiff’s administrative motion to seal.

16

This Order disposes of Docket Nos. 82 & 97.

17

IT IS SO ORDERED.

18

Dated: November 13, 2018

19
20
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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