Drake v. Berg et al

Filing 24

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT by Judge Phyllis J. Hamilton granting 7 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/27/2011)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

OAKLAND DIVISION

6
7

GASPER V. DRAKE,
Plaintiff,

8
vs.

9

ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

Correctional Officers J. BERG and
S. LAMPHERE,

11
For the Northern District of California

United States District Court

10

No. C 10-2217 PJH (PR)

Defendants.
12

/

13

This is a civil rights case filed pro se by a state prisoner. Defendants have moved

14

for summary judgment, plaintiff has opposed the motion, and defendants have filed a reply.

15

The motion is ready for decision.

16

BACKGROUND

17

Plaintiff alleges that he was attacked by two prisoners in a day room at Pelican Bay

18

State Prison. Defendants Berg and Lamphere were in the control booth overseeing the day

19

room. As plaintiff was defending himself from the attackers, Berg shot him with a foam

20

projectile from “a 40mm launcher.” It hit him in the left eye, causing serious damage. He

21

also says that when he had fallen to the ground and was being kicked by his attackers,

22

Lamphere shot him in the lower back with another foam projectile.
DISCUSSION

23
24
25

A.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show

26

that there is "no genuine dispute as to any material fact and that the moving party is entitled

27

to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may

28

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

1

A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury

2

to return a verdict for the nonmoving party. Id.

3

The moving party for summary judgment bears the initial burden of identifying those

4

portions of the pleadings, discovery and affidavits which demonstrate the absence of a

5

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nissan

6

Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving

7

party has met this burden of production, the nonmoving party must go beyond the

8

pleadings and, by its own affidavits or discovery, set forth specific facts showing that there

9

is a genuine issue for trial. If the nonmoving party fails to produce enough evidence to
show a genuine issue of material fact, the moving party wins. Id.

11
For the Northern District of California

United States District Court

10

B.

Analysis

12

1.

13

The treatment a prisoner receives in prison and the conditions under which he is

Excessive Force Standard

14

confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509

15

U.S. 25, 31 (1993). "After incarceration, only the unnecessary and wanton infliction of pain

16

. . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment."

17

Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in original) (internal quotation and

18

citation omitted). The core judicial inquiry when prison officials stand accused of using

19

excessive force in violation of the Eighth Amendment is whether force was applied in a

20

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

21

harm. Hudson v. McMillian, 503 U.S. 1, 6 (1992).

22

2.

23

Defendants have supported their motion with their own declarations plus that of their

Analysis

24

attorney authenticating materials from plaintiff’s central file. Plaintiff has supported his

25

opposition with six declarations, all of which are by him, and six exhibits. Exhibits A and B

26

are medical records, exhibit C is a letter from an attorney at the Prison Law Office, exhibit D

27

and E are incident reports by defendants Berg and Lamphere, and exhibit F is an incident

28

report by Sergeant R. Berry, who responded to the alarm sounded by Berg and who is not
2

1

a defendant.

2

It is undisputed that plaintiff was attacked by two other inmates, that Berg sounded

3

an audible alarm, that inmates know that when an audible alarm is sounded they must get

4

down into a prone position, that the fight continued despite the alarm, that Berg and

5

Lamphere each fired at least one “foam-baton” shot, and that plaintiff was seriously injured.

6

Decl. Berg ¶ ¶ 6-9; Decl. Lamphere ¶ ¶ 4-5; Decl. Kenny at Ex. E; Decl. Drake at 2, 4-5, 15,

7

20.1 Plaintiff does dispute the claim by Berg and Lamphere that both yelled “get down”

8

before firing. Decl. Drake at 2, 5,15; Decl. Berg at ¶ 6; Decl. Lamphere at ¶ 4. Plaintiff also

9

contends that three shots were fired, rather than two. Decl. Drake at 5; Decl. Berg at ¶ 7.
In ruling on the motion the court will adopt plaintiff’s position on these disputed facts.

11
For the Northern District of California

United States District Court

10

Plaintiff also disputes several other points, such as who started the fight, but those disputes

12

clearly are not material.

13

In determining whether the use of force was for the purpose of maintaining or

14

restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may

15

evaluate the need for application of force, the relationship between that need and the

16

amount of force used, the extent of any injury inflicted, the threat reasonably perceived by

17

the responsible officials, and any efforts made to temper the severity of a forceful response.

18

Hudson, 503 U.S. at 7.

19

As to the need for the application of force, at the time the fight broke out there were

20

two officers supervising many (Berg says “up to forty-eight”) inmates from the control booth.

21

Decl. Berg at ¶ 2. Obviously they could not safely physically engage with the combatants,

22

and it is undisputed that prison policy is to stop fights immediately to keep the violence from

23

spreading. Plaintiff says that the two inmates who attacked him were Asian, and that he

24

has “Afro-American features,” which suggests the danger of racial unrest. Decl. Drake at 5.

25

Also, the audible alarm was sounded and all the inmates except those fighting got down;

26
27
28

1

Because plaintiff’s opposition consists largely of his six declarations, and they are not
consecutively paginated, in citing to plaintiff’s declarations the court has used the page
numbers assigned to the opposition by the court’s electronic docketing system.
3

1

therefore, further action was necessary to stop the fight. There was a need for application

2

of force.

3

As to the relationship between that need and the amount of force used, the above

4

discussion applies; given the situation, use of the foam-baton launchers was an appropriate

5

amount of force. That a third shot was fired – being assumed here because there is a

6

genuine dispute of fact about the number of shots – does provide a slight implication that

7

the amount of force might have exceeded the minimum necessary. This factor therefore

8

slightly favors plaintiff’s position.

9

The extent of the injury from Berg’s shot, a very serious eye injury to plaintiff that
required emergency room treatment and surgery, favors plaintiff on his claim against Berg.

11
For the Northern District of California

United States District Court

10

The injury from Lamphere’s shot, a cut on plaintiff’s lower back, was much less serious.

12
13
14

As to the threat reasonably perceived by the responsible officials, it was, as
discussed above, substantial and serious.
Finally, as to efforts made to temper the severity of a forceful response, both officers

15

contend that they were aiming for the participants’ lower torso, and that the impacts

16

occurred where they did only because the participants were moving around as they fought.

17

Plaintiff claims that Berg could not have been aiming at his lower torso, because her shot

18

hit him in the eye, but given the exigency of the situation and the fact that the combatants

19

were in motion, this is not enough in itself to create a genuine issue of material fact as to

20

where Berg was aiming. The use of the foam-baton launchers also suggests an attempt to

21

avoid even more serious injury. In addition, the defendants sounded an audible alarm that

22

caused the other inmates to get down, leaving aside the disputed fact whether defendants

23

also ordered “get down.” The use of the alarm would have tempered the severity of the

24

response if the fighting inmates had acted as they had been taught, by getting down.

25

The court has not simply added up the number of factors favoring plaintiff and those

26

favoring defendants and concluded that the side with the most factors in favor is entitled to

27

summary judgment. Rather, the court has weighed the considerations suggested in

28

Hudson and concludes that the important and serious security needs involved here easily
4

1

outweigh any slight implication that the force used was excessive. On the undisputed facts

2

or, where disputed, plaintiff’s version, the balance of the Hudson factors favors defendants.

3

Defendants did not apply force maliciously and sadistically to cause harm.

4
5
6

CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (document
number 7 on the docket) is GRANTED.

7

The clerk shall close the file.

8

IT IS SO ORDERED.

9

Dated: September 27, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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

P:\PRO-SE\PJH\CR.10\DRAKE2217.MSJ.wpd

5