Flowers v. Alameda County Sheriffs et al

Filing 97


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 JOSEPH J. FLOWERS, ) ) Plaintiff, ) ) v. ) ) ALAMEDA COUNTY SHERIFF'S ) DEPARTMENT, et al., ) ) Defendants. ) __________________________ ) No. C 08-04179 CW (PR) ORDER DENYING PLAINTIFF'S MOTIONS TO FILE FOURTH AMENDED COMPLAINT AND COMPEL PRODUCTION OF DOCUMENTS; DISMISSING EXCESSIVE FORCE AND UNREASONABLE SEARCH CLAIMS; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket nos. 67, 84, 85) 9 11 For the Northern District of California United States District Court 10 INTRODUCTION Plaintiff, a state prisoner currently incarcerated at Salinas 12 Valley State Prison (SVSP), filed this civil rights action pursuant 13 to 42 U.S.C. § 1983, concerning events that took place when he was 14 in the custody of the Alameda County Sheriff's Department in 2007 15 and 2008. 16 The operative pleading is Plaintiff's third amended complaint 17 (3AC), which was filed on July 2, 2010. 18 Alameda County Defendants filed a motion for summary judgment. 19 Thereafter, Plaintiff filed an opposition to the motion, together 20 with a motion to file a fourth amended complaint (4AC) and a motion 21 to compel discovery (MTC). 22 Defendants have filed a reply to Plaintiff's opposition and have opposed Plaintiff's motions. BACKGROUND 23 24 On May 13, 2011, the On March 21, 2007, Plaintiff was taken into the custody of the Alameda County Sheriff's Department and booked into the Santa Rita 25 County Jail (SRCJ). Through August 3, 2007, he was incarcerated at 26 either SRCJ or the Glenn Dyer Detention Facility (GDDF). On that 27 date, he was transferred from the custody of the Alameda County 28 Sheriff's Office to the California Department of Corrections and 1 Rehabilitation (CDCR). 2 Following his release from CDCR, Plaintiff was arrested again. 3 He was booked by the Hayward Police Department on May 13, 2008, and 4 transported to SRCJ on May 14, 2008. 5 Plaintiff alleges that during these two periods of 6 incarceration at SRCJ and GDDF, Defendants violated his 7 constitutional rights. 8 reviewed the allegations in the 3AC and ordered that pleading 9 served on Defendants. 11 For the Northern District of California United States District Court 10 12 By Order filed November 24, 2010, the Court Specifically, the Court directed Defendants to respond to the following cognizable claims for relief: (1) unlawful placement in administrative segregation; (2) mail tampering; (3) deliberate indifference to safety and denial of access to the courts; (4) deliberate indifference to serious 13 medical needs; and (5) food tampering. Plaintiff's excessive force 14 and unreasonable search claims were dismissed because Plaintiff had 15 16 17 not named or linked any Defendants to his allegations; the claims were dismissed with leave for Plaintiff to move to amend should he learn the identities of the responsible individuals. 18 19 DISCUSSION I. 20 Voluntary Dismissal of Claims In opposition to the motion for summary judgment, Plaintiff 21 states he is dismissing voluntarily his claims of unlawful 22 placement in administrative segregation and food tampering. 23 no. 86 at 3. 24 prejudice. 25 II. 26 Docket Accordingly, these claims are DISMISSED with Motion for Leave to File Fourth Amended Complaint "[A] party may amend its pleading only with the opposing 27 party's written consent or the court's leave." 28 15(a)(2). See Fed. R. Civ. P. The district court may exercise its discretion to deny a 2 1 motion for leave to amend where the amendment of the complaint 2 would cause the opposing party undue prejudice, is sought in bad 3 faith, constitutes an exercise in futility, or creates undue delay. 4 See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 5 1994). "[A] district court has broad discretion to grant or deny 6 leave to amend, particularly where the court has already given a 7 plaintiff one or more opportunities to amend his complaint to 8 allege federal claims." 9 Cir. 1996). 11 For the Northern District of California United States District Court 10 12 A. Mir v. Fosburg, 646 F.2d 342, 347 (9th Mail Tampering, Safety and Court Access The allegations in the 3AC and 4AC with respect to Plaintiff's claims of mail tampering, deliberate indifference to his safety and denial of access to the courts are substantially the same. 13 Plaintiff has not shown why amendment of these claims should be 14 granted. 15 16 17 B. Accordingly, leave to amend these claims is DENIED. Deliberate Indifference to Serious Medical Needs In Plaintiff's original complaint, first amended complaint, second amended complaint and the operative 3AC, his claim of 18 deliberate indifference to his serious medical needs is based on 19 allegations of inadequate access to medical care in 2008 for an 20 injury that occurred in 2007, and the failure to comply with 21 medical orders, resulting in him re-injuring himself on August 13, 22 2008 while climbing stairs. 23 Plaintiff's proposed amendment to this claim seeks to add a 24 new allegation of injury from climbing stairs that occurred on 25 September 9, 2008. 26 not allege facts about the September 8, 2008 incident in any of his 27 prior pleadings. 28 Plaintiff, however, does not explain why he did The Court finds that amendment to add these new allegations to 3 1 Plaintiff's medical claim at this late stage in the proceedings 2 would cause undue prejudice to Defendants and create undue delay of 3 the resolution of this case. 4 claim is DENIED. Accordingly, leave to amend this 5 C. Excessive Force and Illegal Search 6 The Court previously found that Plaintiff stated cognizable 7 claims (1) for excessive force, based on his allegations that, on 8 May 14, 2008, he was beaten without cause by unidentified sheriff's 9 deputies, and (2) an unreasonable search, based on his allegations 11 For the Northern District of California United States District Court 10 12 that, on July 28, 2008, he was strip-searched repeatedly without cause by an unidentified sheriff's deputy. As noted above, however, because Plaintiff had not identified any of the deputies responsible for the above alleged violations, the Court dismissed 13 both claims with leave to move to amend to name the responsible 14 individuals should he discover their identities. 15 16 17 Docket no. 38 at 12:8-14, 14:4-16. Plaintiff now seeks to amend the 3AC to add Deputies R. Bixby and M. Menard as Defendants responsible for the use of excessive 18 force and Deputy R. Bartholomew as the Defendant responsible for 19 the unreasonable search. 20 amendments. 21 with respect to these claims, however, the Court finds that 22 granting leave to amend the 3AC to add the new Defendants would be 23 futile because the claims are subject to dismissal as improperly 24 joined. 25 Defendants do not oppose these In view of the new information Plaintiff has provided A plaintiff may properly join as many claims as he has against 26 an opposing party. 27 against a single party may be alleged in a single complaint, 28 unrelated claims against different defendants must be alleged in 4 Fed. R. Civ. P. 18(a). While multiple claims 1 separate complaints. 2 Cir. 2007). 3 "any right to relief is asserted against them jointly, severally, 4 or in the alternative, with respect to or arising out of the same 5 transaction, occurrence, or series of transactions and 6 occurrences," Fed. R. Civ. P. 20(a)(2)(A), and, "any question of 7 law or fact common to all defendants will arise in the action," 8 Fed. R. Civ. P. 20(a)(2)(B). For the Northern District of California United States District Court 11 12 Further, parties may be joined as defendants only if Here, Plaintiff's excessive force and illegal search claims 9 10 See George v. Smith, 507 F.3d 605, 607 (7th involve Defendants who are identified for the first time in the 4AC and are not linked to any of Plaintiff's other claims. Additionally, the claims concern discrete instances of alleged misconduct that do not arise out of the same transactions or 13 occurrences as the claims at issue in the 3AC. Consequently, the 14 Court concludes that the excessive force and illegal search claims 15 16 17 are not properly joined in the 3AC. Therefore, leave to amend these claims is DENIED, and the claims are DISMISSED without prejudice to Plaintiff's pursuing them in new and separate 18 complaints. 19 III. Discovery 20 Together with his opposition to the motion for summary 21 judgment Plaintiff has filed a "Motion for Additional Discovery" 22 and, in his supplemental opposition to the motion for summary 23 judgment, he claims he requires additional relevant documentation 24 from Defendants to support his opposition. 25 As Defendants have done, the Court construes the discovery-related 26 requests as a motion to compel discovery and a request for 27 additional discovery under Federal Rule of Civil Procedure 56(d). 28 // 5 Docket nos. 84 & 94. 1 A. 2 Plaintiff seeks to compel discovery of the following documents Motion to Compel 3 previously requested from Defendants: (1) his booking photos from 4 May 13 and 14, 2008, from both SRCJ and the Hayward Police 5 Department; (2) photos related to discovery documents numbers 6 ACSO000706 and ACSO000703, which pertain to injuries suffered by 7 Plaintiff at SRCJ on August 12 and September 9, 2008; (3) the 8 legible or typed names of medical staff at Prison Health Services 9 who produced medical progress reports on June 17 and 19, 2008; and 11 For the Northern District of California United States District Court 10 (4) the name of an Asian deputy sheriff working when Plaintiff was booked at the Hayward Police Department. Defendants oppose Plaintiff's motion on the ground they have 12 complied with the Federal Rules of Civil Procedure by producing 13 those documents responsive to Plaintiff's requests that are in 14 their "possession, custody or control," see Fed. R. Civ. P. 15 16 17 34(a)(1), and also by fulfilling their obligation to conduct a reasonable inquiry into the location of the documents requested. See Fed. R. Civ. P. 26(g). In support of their opposition, 18 Defendants submit the declaration of their counsel of record, 19 Associate County Counsel Manuel Martinez, and attached exhibits 20 comprised of Defendants' responses to Plaintiff's discovery 21 requests. 22 County Counsel Audrey Beaman and Kelly Martinez, the Civil 23 Litigation Manager for the Alameda County Sheriff's Department, all 24 of whom have sworn, under penalty of perjury, that they have 25 searched for, and provided Plaintiff with, all documents, photos 26 and other information in their possession, custody or control that 27 might be responsive to his requests. 28 1-7. The responses have been verified by Martinez, Deputy 6 See Martinez Decl. & Exs. 1 By contrast, Plaintiff's contention that, despite the 2 representations noted above, Defendants have not searched 3 diligently enough to find the discovery he seeks, are speculative 4 and unsupported by the record. 5 compel is DENIED. Accordingly, Plaintiff's motion to 6 B. Additional Discovery 7 Rule 56(d) of the Federal Rules of Civil Procedure allows a 8 party to avoid summary judgment when such party has not had 9 sufficient opportunity to discover affirmative evidence necessary 11 For the Northern District of California United States District Court 10 12 to oppose the motion. See Garrett v. San Francisco, 818 F. 2d 1515, 1518 (9th Cir. 1987).1 In particular, Rule 56(d) provides that a court may deny a summary judgment motion and permit the opposing party to conduct discovery where it appears that the 13 opposing party, in the absence of such discovery, is unable to 14 present facts essential to opposing the motion. 15 16 17 Here, Plaintiff has had adequate opportunity to conduct discovery to seek facts to oppose the claims at issue in the motion for summary judgment, and he acknowledges in his opposition to the 18 motion for summary judgment that he has received more than 1,500 19 discovery responses from Defendants. 20 additional discovery under Rule 56(d) is DENIED. 21 IV. Accordingly, the request for Motion for Summary Judgment 22 A. 23 Summary judgment is only proper where the pleadings, discovery Legal Standard 24 and affidavits show there is "no genuine issue as to any material 25 fact and that the moving party is entitled to judgment as a matter 26 27 28 1 Garrett cites Rule 56(f), the subsection in which this provision formerly was set forth; as of December 1, 2010, the applicable provision is Rule 56(d). See Fed. R. Civ. P. 56. 7 1 of law." 2 affect the outcome of the case. 3 477 U.S. 242, 248 (1986). 4 genuine if the evidence is such that a reasonable jury could return 5 a verdict for the nonmoving party. Fed. R. Civ. P. 56(c). Material facts are those that may Anderson v. Liberty Lobby, Inc., A dispute as to a material fact is Id. 6 The court will grant summary judgment "against a party who 7 fails to make a showing sufficient to establish the existence of an 8 element essential to that party's case, and on which that party 9 will bear the burden of proof at trial." 11 For the Northern District of California United States District Court 10 12 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson, 477 U.S. at 248 (holding fact to be material if it might affect outcome of suit under governing law). The moving party bears the initial burden of identifying those portions of the record that demonstrate the 13 absence of a genuine issue of material fact. The burden then 14 shifts to the nonmoving party to "go beyond the pleadings, and by 15 16 17 18 his own affidavits, or by the 'depositions, answers to interrogatories, or admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)). 19 In considering a motion for summary judgment, the court must 20 view the evidence in the light most favorable to the nonmoving 21 party; if, as to any given fact, evidence produced by the moving 22 party conflicts with evidence produced by the nonmoving party, the 23 court must assume the truth of the evidence set forth by the 24 nonmoving party with respect to that fact. 25 ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 26 a summary judgment motion is not to make credibility determinations 27 or weigh conflicting evidence with respect to a disputed material 28 fact. See Leslie v. Grupo The court's function on See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 8 1 F.2d 626, 630 (9th Cir. 1987). 2 B. Mail Tampering 3 Plaintiff alleges a single incident of purported mail 4 tampering that occurred on August 2, 2007, the day he was 5 transferred from GDDF to SRCJ. 6 that prior to the transfer he handed to mailroom personnel two 7 legal mail packages, each of which contained documents concerning 8 his "writ." 9 County Superior Court and the District Attorney's Office. For the Northern District of California United States District Court 12 The packages were addressed to the Alameda Id. The following day, Plaintiff was transferred to state prison. 10 11 3AC at 2. Specifically, Plaintiff alleges Martinez Decl. ¶ 23. When, after sixty days, he had not heard back from the Superior Court, he sent a notice regarding lost mail to GDDF. On or about October 22, 2007, Plaintiff received the 13 documents in question, which had been forwarded from GDDF as "Lost 14 Mail." 15 16 17 3AC at 2. He noticed that the documents were misplaced and not in their original envelopes. Id. He claims that as a result of the mishandling of his mail the "[j]udges rulings were effected" in his case. Id. He brings this claim against Sheriff Ahern, who 18 he claims is responsible for implementing the mail policy and 19 procedures that resulted in the mishandling of his mail. 20 Prisoners enjoy a First Amendment right to send and receive 21 mail. 22 Nonetheless, prison officials may institute procedures for 23 inspecting legal mail, which includes mail sent between attorneys 24 and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974), 25 and mail sent from prisoners to the courts, see Royse v. Superior 26 Court, 779 F.2d 573, 574-75 (9th Cir. 1986). 27 delay of legal mail which adversely affects legal proceedings 28 presents a cognizable claim for denial of access to the courts, see 9 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). While the deliberate 1 Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986), isolated 2 incidents of mail interference without any evidence of improper 3 motive or resulting interference with the right to counsel or 4 access to the courts do not give rise to a constitutional 5 violation. 6 1990); Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975); 7 Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974). 8 9 11 For the Northern District of California United States District Court 10 12 See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. Here, on the undisputed evidence presented by the parties, a First Amendment violation is not shown. This was an isolated incident of mail mishandling; there is no evidence that the mishandling was based on the content of the mail or was purposeful. Moreover, Plaintiff's conclusory assertion that the ruling in his Superior Court case was affected by the mishandling is unsupported 13 and is not probative evidence that the mishandling had a negative 14 impact on any legal proceeding. 15 16 17 18 19 Additionally, Plaintiff's supervisory liability claim fails because his assertion is that the mail was not handled in accordance with Sheriff Ahern's written policy and procedures, and he has offered no evidence that shows there was a mailroom practice of subverting the policy. Accordingly, summary judgment is GRANTED to Sheriff Ahern on 20 this claim. 21 C. 22 Plaintiff alleges that upon arriving at SRCJ after his Deliberate Indifference to Safety/Denial of Court Access 23 transfer from GDDF on August 2, 2007, he was placed in a cell with 24 two inmates who were dressed in yellow clothing. 25 was in full hand and leg restraints, was wearing red clothing. 26 According to Plaintiff, red clothing indicates an inmate's 27 segregation status, while yellow clothing indicates an inmate is 28 housed on the mainline. Plaintiff, who Inmates wearing different colored clothing 10 1 are not to be placed in cells together. 3AC at 3(a). 2 Plaintiff alleges the two inmates took his legal materials, 3 which were hard copies of his criminal appeal and several of his 4 musical compositions, ripped them up and flushed them down the 5 toilet and "physically abused" Plaintiff, who was unable to protect 6 himself. 7 seen [sic] was Deputy Fis[c]her, a female officer; who ignored 8 plaintiff during the attacks; and refused to assist plaintiff while 9 housed in the intack [sic] unit of receiving the 'afternoon time', 11 For the Northern District of California United States District Court 10 Id. Plaintiff further alleges that "[p]resent at the Aug. 2, 2007." Ahern. He brings this claim against Fischer and Sheriff 3AC at 3(a)-(b). In support of the motion for summary judgment, Fischer 12 affirmatively denies, under penalty of perjury, that she either 13 witnessed or was aware of Plaintiff being physically attacked or of 14 anyone destroying or taking his property on August 2, 2007. 15 16 17 Shavies ¶¶ 5-6.2 Decl. She further denies that she stood idly by while the alleged attack occurred. Id. ¶ 7. Additionally, Defendants have submitted evidence that the Sheriff's Department possesses no 18 "grievance, information, record or document" that supports 19 Plaintiff's allegations, nor is there any report documenting 20 physical injury to Plaintiff on that date. 21 27. 22 Decl. Martinez ¶¶ 26- In his declaration in support of his opposition to the motion 23 for summary judgment, Plaintiff states that "Plaintiff recalls 24 Deputy Fischer there and ignored Plaintiff during the morning/noon 25 shift the incidents of Aug 2, 2007. She walked pass the 26 27 28 2 Deputy Fischer's last name is now Shavies. For convenience and consistency, she will be referred to as Deputy Fischer herein. 11 1 location/cell several times without assisting Plaintiff, as 2 Plaintiff called." 3 Pl.'s Decl. ¶ 17. Under the Eighth Amendment, prison officials must take v. Brennan, 511 U.S. 825, 832 (1994). 6 officials have a duty to protect prisoners from violence at the 7 hands of other prisoners. 8 1036, 1040 (9th Cir. 2005). 9 protect inmates from attacks by other inmates violates the Eighth 10 Amendment only when two requirements are met: (1) the deprivation 11 For the Northern District of California reasonable measures to guarantee the safety of prisoners. 5 United States District Court 4 alleged is, objectively, sufficiently serious; and (2) the prison 12 official is, subjectively, deliberately indifferent to inmate 13 safety. 14 Farmer In particular, prison Id. at 833; Hearns v. Terhune, 413 F.3d The failure of prison officials to Farmer, 511 U.S. at 834; Hearns, 413 F.3d at 1040-41. Here, Plaintiff has failed to present evidence that creates a 15 genuine issue of material fact with respect to whether Fischer 16 acted with deliberate indifference to his safety. 17 Fischer affirmatively denies that she was aware of the alleged 18 incident or failed to come to Plaintiff's aid, and also has shown 19 that the Sheriff's Department possesses no record of the incident. 20 In response, Plaintiff has not presented evidence that refutes 21 Fischer's. 22 inmates, without providing any further detail about the assault or 23 resulting injury, Opp'n at 27-28, and that Fischer walked by the 24 cell several times during the morning/noon shift without responding 25 when "plaintiff called." 26 about what he said when he called or how many times he did so. 27 Pl.'s Decl. ¶ 17. 28 Fischer might have heard Plaintiff calling to her when she walked Specifically, Rather, he states only that he was "jumped" by the He does not provide any further detail At most, Plaintiff's assertions show that 12 1 by his cell, but did not respond. Such assertions, however, do not 2 raise a reasonable inference that Fischer knew Plaintiff was being 3 beaten and intentionally failed to act to protect him. 4 Plaintiff has presented no evidence to refute to refute Fischer and 5 Sheriff Ahern's evidence that no record of the incident exists. 6 Additionally, Plaintiff has not shown that, as a result of Further, 7 either Fischer's or Sheriff Ahern's actions, he was denied access 8 to the courts. 9 the courts. Prisoners have a constitutional right of access to Lewis v. Casey, 518 U.S. 343, 350 (1996). To establish a claim for a violation of this right, the prisoner must 11 For the Northern District of California United States District Court 10 prove that he suffered "actual injury" because he was denied such 12 access. 13 that the actions of prison officials hindered his efforts to pursue 14 a non-frivolous claim concerning his conviction or conditions of 15 confinement. 16 evidence to support his assertion that either Fischer or Sheriff 17 Ahern's conduct was the cause of the destruction of his legal 18 documents or that he suffered an actual injury to court access as a 19 result of the destruction. Id. at 350-55. To prove an actual injury, he must show See id. at 354-55. Here, Plaintiff has presented no 20 Accordingly, summary judgment is GRANTED to Fischer and 21 Sheriff Ahern on Plaintiff's deliberate indifference to safety and 22 denial of court access claims. 23 D. Deliberate Indifference to Serious Medical Needs 24 Plaintiff alleges that when he was incarcerated at SRCJ, 25 Deputies Jones, Smith, DeLeon, Nelson, Delima, Kull and Valverde 26 were deliberately indifferent to his serious medical needs between 27 May 13, 2008 and August 24, 2008. 28 Sheriff Ahern was responsible for policies that permitted 13 Plaintiff further alleges that 1 indifference to his medical needs through September 2008. Department on May 13, 2008 and transported to SRCJ the next day. 4 Plaintiff maintains that, from his arrival at SRCJ on May 14, 2008 5 through August 24, 2008, Defendants acted to prevent him from 6 seeking medical treatment for injuries he suffered from the alleged 7 beating by other inmates at SRCJ on August 2, 2007 (discussed 8 above), and from an old gunshot wound to his neck. 9 that the lack of adequate attention to those needs resulted in his 10 re-injuring himself on August 13, 2008, when he was moved through 11 For the Northern District of California Plaintiff was arrested and booked by the Hayward Police 3 United States District Court 2 the jail while in restraints. He also claims Deliberate indifference to a prisoner's serious medical needs 12 13 violates the Eighth Amendment's proscription against cruel and 14 unusual punishment. 15 (1976). 16 examination of two elements: the seriousness of the prisoner's 17 medical need and the nature of the defendant's response to that 18 need. 19 overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 20 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 21 deliberately indifferent if he knows a prisoner faces a substantial 22 risk of serious harm and disregards that risk by failing to take 23 reasonable steps to abate it. 24 (1994). 25 established, there must exist both a purposeful act or failure to 26 act on the part of the defendant and harm resulting therefrom. 27 McGuckin, 974 F.2d at 1060. 28 See Estelle v. Gamble, 429 U.S. 97, 104 A determination of "deliberate indifference" involves an McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), A prison official is Farmer v. Brennan, 511 U.S. 825, 837 Consequently, in order for deliberate indifference to be The Court finds Plaintiff has not presented evidence that 14 See 1 raises a triable issue of fact as to whether Defendants acted with 2 deliberate indifference to his serious medical needs. 3 initial matter, it is undisputed that Defendants are not medical 4 providers. 5 claims knew of his injuries and prevented him from receiving 6 necessary medical care. 7 evidence that supports his assertion. 8 undisputed facts show the following: (1) Plaintiff was medically 9 assessed when he arrived at SRCJ on May 14, 2008, and the only As an Rather, they are sheriff's deputies who Plaintiff Plaintiff, however, has not presented In particular, the injuries noted were a wrist abrasion three to four days old and an 11 For the Northern District of California United States District Court 10 old gunshot wound to the neck, which he states he suffered in 1987; 12 (2) deputy sheriffs escorted him to sick call on May 20, 27 and 30, 13 2008, July 10, 2008, and September 9 and 15, 2008; (3) he had two 14 sets of x-rays taken while at SRCJ -- an x-ray of his right wrist, 15 on May 28, 2008, and of his right wrist and lumbar spine, on 16 September 10, 2008, both of which showed no acute findings; (4) he 17 refused an annual health assessment on May 29, 2008 and 18 acknowledged that he would assume all responsibility for his 19 welfare; (5) he refused to cooperate during physical therapy 20 appointments on June 17, 2008, June 19, 2008 and July 3, 2008; 21 (6) medical staff provided him with pain medication from May 27, 22 2008 to June 3, 2008, and from July 30, 2008 to August 13, 2008. 23 See Decl. Gilbert & Exs. 1-6; Decl. Gober & Ex. 1; Decl. Molloy. 24 Further, Plaintiff claims Defendants did not comply with a 25 medical order for special housing and bunk assignments. 26 Defendants, however, have presented undisputed evidence that 27 Plaintiff never informed the housing unit deputies of that order 28 and, pursuant to Alameda County Jail regulations, it is the 15 1 prisoner's responsibility to inform the housing unit deputy of an 2 order to be placed on the lower tier and lower bunk. 3 Jones ¶ 6-7. 4 Defendants could not have been deliberately indifferent to them. Decl. P.M. Without knowledge of Plaintiff's medical needs, 5 Additionally, Plaintiff has not presented evidence that Deputy 6 Jones acted with deliberate indifference when he moved Plaintiff in 7 restraints on August 12, 2008, which, Plaintiff alleges, caused him 8 to fall and re-injure himself. 9 was restrained and not, as Jones wrote in the incident report, Even if Plaintiff fell because he because his foot slipped out of his sandal, there is no evidence 11 For the Northern District of California United States District Court 10 that Jones knew of a substantial risk of harm to Plaintiff and 12 failed to act to prevent such harm. 13 Plaintiff was housed in administrative segregation and all such 14 inmates must be moved in restraints; Plaintiff does not allege that 15 a medical order required that he be excepted from this procedure or 16 that Jones failed to honor such an order. 17 other facts which support the proposition that Jones acted with 18 deliberate indifference. 19 Rather, it is undisputed that Nor does he allege any Finally, Plaintiff has not shown supervisory liability for 20 deliberate indifference to his medical needs by Sheriff Ahern. 21 Respondeat superior liability does not exist under 42 U.S.C. 22 § 1983. 23 supervisor is only liable for constitutional violations of his 24 subordinates if the supervisor participated in or directed the 25 violations, or knew of the violations and failed to act to prevent 26 them." 27 acted with deliberate indifference to his serious medical needs or 28 that any Sheriff's Department policy resulted in the violation of Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Id. "A Here, Plaintiff has not shown that any deputy sheriff 16 1 2 3 his constitutional rights. Based on the above, summary judgment is GRANTED in favor of Defendants on this claim. 4 E. Qualified Immunity 5 Defendants argue that they are entitled to qualified immunity. 6 The defense of qualified immunity protects "government officials 7 . . . from liability for civil damages insofar as their conduct 8 does not violate clearly established statutory or constitutional 9 rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 11 For the Northern District of California United States District Court 10 The threshold question in qualified immunity analysis is: "Taken in the light most favorable 12 to the party asserting the injury, do the facts alleged show the 13 officer's conduct violated a constitutional right?" 14 Katz, 533 U.S. 194, 201 (2001). 15 in determining whether a right is clearly established is whether it 16 would be clear to a reasonable defendant that his conduct was 17 unlawful in the situation he confronted. Saucier v. The relevant, dispositive inquiry Id. at 202. 18 On the facts presented herein, viewed in the light most 19 favorable to Plaintiff, Defendants prevail as a matter of law on 20 their qualified immunity defense because the record establishes no 21 constitutional violation. 22 occur, however, Defendants could have reasonably believed their 23 conduct was lawful. 24 tampering claim, it would not have been clear to Sheriff Ahern that 25 his policy for the inspection of legal mail violated the First 26 Amendment because of a single incident of Plaintiff's mail being 27 mishandled. 28 Fischer or Sheriff Ahern that Plaintiff's right to be protected Even if a constitutional violation did Specifically, with respect to Plaintiff's mail Additionally, it would not have been clear to Deputy 17 1 from attack by other inmates was violated based on Plaintiff's bare 2 statement that he called out to Fischer when she passed by his cell 3 but she did not respond. 4 Fischer or Sheriff Ahern that Fischer violated Plaintiff's 5 constitutional right of access to the courts by failing to prevent 6 other inmates from flushing his legal materials down the toilet. 7 Finally, it would not have been clear to those Defendants who are 8 alleged to have prevented Plaintiff from receiving adequate medical 9 care that they were acting with deliberate indifference to his Further, it would not have been clear to serious medical needs. 11 For the Northern District of California United States District Court 10 They escorted him to see medical staff on numerous occasions, were unaware of a medical order to provide him 12 with certain housing and bunk assignments, and escorted him in 13 restraints when there was no medical order requiring a different 14 procedure. 15 Accordingly, Defendants are entitled to qualified immunity 16 with respect to all of Plaintiff's claims, and their motion for 17 summary judgment is GRANTED for this reason as well. CONCLUSION 18 19 For the foregoing reasons, the Court orders as follows: 20 1. 21 Plaintiff's motion for leave to file a fourth amended complaint is DENIED. 22 2. Plaintiff's motion to compel discovery is DENIED. 23 3. The administrative segregation and food tampering claims 24 25 26 are DISMISSED with prejudice. 4. The excessive force and illegal search claims are DISMISSED without prejudice. 27 5. Defendants' motion for summary judgment is GRANTED. 28 The Clerk of the Court shall enter judgment and close the 18 1 file. All parties shall bear their own costs. 2 This Order terminates Docket nos. 67, 84 and 85. 3 IT IS SO ORDERED. 4 Dated: 3/27/2012 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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