Robertson v. Struffert

Filing 91

ORDER re 80 MOTION for Summary Judgment. Pretrial Conference set for 12/7/2015 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White.Jury Selection set for 1/6/2016 08:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Jury Trial set for 1/11/2016 08:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Signed by Judge JEFFREY S. WHITE on 6/15/15. (jjoS, COURT STAFF) (Filed on 6/15/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYNE JEROME ROBERTSON,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 12-04698 JSW

v.
SGT. W. STRUFFERT, et al.,

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ORDER

Defendants.
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Now before the Court is the motion for summary judgment filed by Plaintiff Wayne

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Jerome Robertson (“Plaintiff”). The Court finds this motion is suitable for disposition without

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oral argument, and therefore VACATES the hearing scheduled for June 19, 2015. See Civil

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L.R. 7-1(b). The Court has considered the parties’ papers and relevant legal authority, and

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hereby denies Plaintiff’s motion for summary judgment for the reasons set forth below.

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BACKGROUND

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Plaintiff is an inmate at Salinas Valley State Prison. On February 17, 2012, prison

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staff were notified by medical staff that Plaintiff was hoarding medications. (Compl., Ex. A at

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18 (February 17, 2012 Crime Incident Report written by Lieutenant A. Pepiot).) Hoarding

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medications is considered dangerous because there have been instances of inmates attempting to

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commit suicide or harming themselves by ingesting hoarded medications. (Id.) On February

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17, 2012, Licenced Vocational Nurse (“LVN”) E. Scott asked Plaintiff to give her his high

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blood pressure medication and Plaintiff refused. (Compl. at 3.)1 Correctional Officer R.E.

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The Court uses the page numbers of the complaint that appear on the Court’s
electronic docketing system.
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Martinez received a request from LVN Scott to retrieve medications from Plaintiff’s cell, as

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ordered by the doctor. (Compl., Ex. A at 22 (Officer Martinez’s February 17, 2012 Rules

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Violation Report (“Martinez RVR”)).) Officers Martinez and D. Nelson approached Plaintiff’s

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cell door and advised him that they were there to retrieve his medications as requested by the

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doctor. (Id.) The Officers advised Plaintiff that medical staff would continue to provide him

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with his medications. (Id.) Plaintiff refused to give them his medication. (Id.; Compl. at 3.)

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The Officers informed Plaintiff that he would be extracted if he refused to give up his

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medication. (Martinez RVR.) Plaintiff continued to refuse and the Officers called Sgt.

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Struffert. (Id.)
Sgt. Struffert ordered Plaintiff to submit to handcuffs and vacate the cell for a cell

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For the Northern District of California

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search. (“Martinez RVR.) Plaintiff ignored Sgt. Struffert’s orders and began to cover his face

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as if to prepare for a cell extraction. (Id.) Sgt. Struffert gave commands to Plaintiff to stop

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covering or oleoresin capsicum (“OC”) would be used. (Id.) Plaintiff continued to cover his

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face and Sgt. Struffert sprayed a burst of OC toward Plaintiff’s face at a distance of

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approximately ten feet. (Id.) Plaintiff continued to disregard Sgt. Struffert’s orders. (Id.) Sgt.

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Struffert then “utilized four (4) T-16 OC grenades, nine more bursts from an MK-9 and two OC

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Vapor grenades to gain compliance.” (Id.) Plaintiff then complied and submitted to handcuffs.

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(Id.) He was taken out of his cell and brought to an outside shower to be decontaminated from

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the effects of OC. (Id.)

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According to Sgt. Struffert’s Crime Incident Report, she told Plaintiff “if he refused to

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cuff and exit his cell, an extraction team would be assembled and chemical agents would be

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used to remove him from his cell.” (Compl. Ex. A at 20 (Sgt. Struffert’s February 17, 2012

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Crime Incident Report).) However, Plaintiff stated, “You’ll have to come get me.” (Id.)

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Plaintiff went to the back of the cell and began to “barricade.” (Id.) He grabbed a towel and

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started to put it over his head. (Id.) Sgt. Struffert gave Plaintiff a direct order “not to barricade

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or she would spray him with chemical agents.” (Id.) After Plaintiff ignored her orders, Sgt.

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Struffert opened the cuff-port and sprayed Plaintiff with her MK-9 OC. (Id.) Plaintiff was at

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the back of the cell approximately ten feet away and the spray hit him in the head and shoulder
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area. (Id.) Sgt. Struffert again ordered Plaintiff to cuff-up, but he remained at the back of the

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cell, in a kneeling position. (Id.) Sgt. Struffert sprayed Plaintiff a second time and continued to

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order him to cuff up. (Id.) She sprayed him two additional times of two to three second bursts

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and waited approximately fifteen to thirty seconds between each application. (Id.) Sgt.

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Struffert ordered Plaintiff to come over and cuff up or she would continue to use chemical

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agents, but Plaintiff continued to ignore her orders, keeping the towel over his head to block the

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effects of the OC. (Id. at 20-21.) Sgt. Struffert then deployed an OC grenade into the cell. (Id.)

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Plaintiff stayed at the back of the cell and continued to cover his head and ignore Sgt. Struffert’s

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orders. (Id. at 21.) She then administered another burst of OC, again with negative results from

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Plaintiff. (Id.) She deployed a second OC grenade. (Id.)
Plaintiff then got up, put his face in the sink and spit and wetted down the towel. (Id.)

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Sgt. Struffert again ordered Plaintiff to come to the cuff port and cuff-up, but he put the towel

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back on his head and retreated to the back of the cell. (Id.) Sgt. Struffert opened the cuff port

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and sprayed Plaintiff again with OC. (Id.) As Plaintiff turned to put his back against the wall

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and kneel down, Sgt. Struffert deployed a third grenade. (Id.) Plaintiff continued to ignore Sgt.

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Struffert’s orders, so she sprayed Plaintiff two additional times with OC. (Id.) Plaintiff

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maintained his position at the back of the cell with the wet towel over his head. (Id.) Sgt.

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Struffert deployed a fourth grenade which disbursed near Plaintiff. (Id.) Plaintiff pulled the

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blanket and sheets from his bunk attempting to cover himself up. (Id.) Sgt. Struffert opened the

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cuff port and sprayed Plaintiff again with OC. (Id.) Sgt. Struffert asked Officer Martinez to

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retrieve additional chemical agents. (Id.) Then Sgt. Struffert deployed an OC vapor grenade on

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the top of the desk where it disbursed two feet away from Plaintiff. (Id.) Plaintiff pulled the

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blankets over his face even tighter. (Id.) Sgt. Struffert then deployed a second OC vapor

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grenade at Plaintiff’s feet where it dispersed. (Id.)

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Plaintiff then got up and came to the cuff port and followed Sgt. Struffert’s orders to

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turn on the light and take off his clothes. (Id.) Officer Nelson conducted an unclothed body

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search and then handcuffed Plaintiff. (Id.) Plaintiff was then escorted to the shower yard for

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decontamination. (Id.) Plaintiff was placed in a holding cell until his own cell was
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decontaminated. (Id.) Officer Cervantes found medication in Plaintiff’s cell and took it to the

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pharmacist for identification. (Id.) The medication consisted of 133 tablets of Enalapril, 197

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tablets of hydrochlorothiazide, 210 tablets of aspirin, and 19 tablets of Verapamil. (Compl., Ex.

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A at 15.)

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Struffert stated at her deposition that she had been told by the officers on February 17,

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2012 that Plaintiff had been in “the psych prior.” (Declaration of Michael J. Quinn (“Quinn

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Decl.”), Ex. 1 (Deposition of Sgt. Struffert) at 79:17-25.) She further stated that she sprayed

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OC into the cuff port because she could not see clearly into the cell and could not see exactly

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what Plaintiff was doing. She feared that if he had the medication, he was consuming them.
(Id. at 86:10-16.) In response to a question asking whether there was anything to suggest that

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on that particular day Plaintiff might have a plan to ingest medication, Sgt. Struffert testified “I

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had no knowledge of that.” (Id. at 91:7-15.) But she clarified that her concern was “elevated”

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because LVN Scott expressed concern to her. (Id. at 91:17-92:3; see also 136:6-13.)

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The Court shall address additional facts as necessary in the remainder of this Order.

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Plaintiff now moves for partial summary judgment on the grounds that Sgt. Struffert violated

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Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment.

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DISCUSSION
A.

Legal Standard Applicable to Motions for Summary Judgment.

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Summary judgment is appropriate when the record demonstrates “that there is no

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genuine issue as to any material fact and that the moving party is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a

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reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to

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weigh the evidence and determine the truth of the matter but to determine whether there is a

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genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case.

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Id. at 248. The party moving for summary judgment bears the initial responsibility of

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identifying those portions of the record which demonstrate the absence of a genuine issue of a

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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Once the moving party meets this initial burden, the non-moving party “may not rest

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upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s

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response, by affidavits or as otherwise provided in this rule, must set forth specific facts

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showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In the absence of such

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facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323;

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see also Keenan, 91 F.3d at 1279.

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The court’s function on a summary judgment motion is not to make credibility

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determinations or weigh conflicting evidence with respect to a disputed material fact. T.W.

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Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence
must be viewed in the light most favorable to the nonmoving party, and the inferences to be

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drawn from the facts must be viewed in a light most favorable to the nonmoving party. Id. at

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630-31.

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B.

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Plaintiff’s Motion.
Plaintiff claims that Sgt. Struffert used excessive and unnecessary force upon him on

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February 17, 2012, in violation of his rights under the Eighth Amendment. The treatment a

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prisoner receives in prison and the conditions under which he is confined are subject to scrutiny

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under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). Whenever prison

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officials stand accused of using excessive force in violation of the Eighth Amendment, the core

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judicial inquiry is whether force was applied in a good-faith effort to maintain or restore

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discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7

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(1992). The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily

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excludes from constitutional recognition de minimis uses of physical force. Wilkins v. Gaddy,

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559 U.S. 34, 37-38 (2010) (quoting Hudson, 503 U.S. at 9 (1992)) (internal quotations omitted).

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

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

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need for application of force, the relationship between that need and the amount of force used,

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the extent of any injury inflicted, the threat reasonably perceived by the responsible officials,

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and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7.
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“Unreasonable force claims are generally questions of fact for a jury.” Hervey v.

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Estes, 65 F3d 784, 791 (9th Cir. 1995). The Court previously determined, viewing the evidence

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in the light most favorable to Plaintiff, that there was a question of fact as to the need for the

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application of force and the amount of force that Sgt. Struffert applied. The question before the

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Court now is whether there is a question of fact when the evidence is viewed in the light most

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favorable to Sgt. Struffert.

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There is substantial evidence upon which a fact-finder could reasonably find that the

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amount of OC that Sgt. Stuffert used against Plaintiff was unnecessary and excessive under the

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circumstances. As the Court previously noted, the undisputed evidence shows that Sgt.
Struffert deployed, in a very short time span, four TC-16 OC expulsion grenades, two OC

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Vapor aerosol grenades and ten bursts from MK-9 OC containers into Plaintiff’s cell. And

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although there is evidence in the record that, in general, an inmate hoarding medication may

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pose a dangerous situation because he could harm himself with them, in this specific

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circumstance, it appears that Plaintiff had been collecting pills for a long time without the

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occurrence of any dangerous incident. LVN Scott told Sgt. Stuffert that Plaintiff was not taking

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his blood pressure medication correctly and that he needed to come out of the cell for a blood

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pressure check. She also told Sgt. Struffert that Plaintiff had been ordered to turn over his

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medication and that he refused. (Declaration of Lori Rifkin, Ex. 1 (Deposition of Sgt. Struffert)

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at 80:10-82:19.) Defendant Struffert understood that “the concern was that [Plaintiff] wasn’t

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taking [the medication] properly as prescribed.” (Id., Ex. 1 at 81:4-5.) LVN Scott did not tell

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Sgt. Struffert that Plaintiff had made past suicide attempts. In fact, Sgt. Struffert testified that

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she did not have any knowledge that there was anything to suggest that Plaintiff might have a

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plan to ingest the medication on that day. (Id., Ex. 1 at 88:22-25, 91:12-15.)

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It was dark, but Sgt. Struffert did not see any medication visible in Plaintiff’s cell.

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(Id., Ex. 1 at 85:7-16.) Sgt. Struffert could see that Plaintiff was using both of his hands to wrap

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or hold the towel and blanket around his head. (Id., Ex. 1 at 86:23-87:21.) There is also

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evidence that Sgt. Struffert used OC against Plaintiff because he was not following the order to

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exit his cell. Sgt. Struffert testified that the reason she started spraying Plaintiff with OC was
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because he was barricading himself by holding a towel up to his face and refusing to come out

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of his cell as ordered. (Id., Ex. 1 at 113:21-23, 124:8-20; see also Ex. 2 at AGO 001, 004-005.)

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In a supplemental crime incident report, Sgt. Struffert stated that she continued to use

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immediate force because she feared that if given the opportunity, Plaintiff would ingest the

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medication. (Id., Ex. 2 at AGO 007.)

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In Defendants’ motion for summary judgment, Sgt. Struffert did not even argue that an

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immediate use of force was justified. Sgt. Struffert initially argued that a “controlled use of

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force” was warranted against Plaintiff and that she sprayed OC into Plaintiff’s cell “[i]n an

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effort to gain Plaintiff’s compliance” with her orders and in “a good faith effort to restore
discipline.” (See Docket No. 39.)

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Nevertheless, although the evidence in support of Sgt. Struffert’s position is thin, the

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Court cannot find as a matter of law that Sgt. Struffert was acting maliciously and sadistically

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for the very purpose of causing harm. Notably, the Court cannot make credibility

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determinations and must view the evidence in the light most favorable to Sgt. Struffert, as the

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non-moving party. While a jury may not ultimately find Sgt. Struffert’s testimony to be

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credible, she testified at her deposition that she used immediate force because she was

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concerned that Plaintiff may have been ingesting the medication that he was hoarding in his

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cell. Just before the incident, LVN Scott had expressed some concern about Plaintiff’s hoarding

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of the medication and refusing to turn the medication over. Plaintiff’s cell was dark and Sgt.

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Struffert could not see clearly into the cell and could not see exactly what Plaintiff was doing.

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She feared that if he had the medication, he was consuming them. (Quinn Decl., Ex. 1. at

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86:10-16, 91:17-92:3, 136:6-13.) Based on the current record and procedural posture, Sgt.

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Struffert’s testimony, viewed in the light most favorable to Sgt. Struffert, is sufficient to create a

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material dispute of fact which precludes granting summary judgment in Plaintiff’s favor.

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Accordingly, the Court denies Plaintiff’s motion for partial summary judgment.

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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for partial summary
judgment. Pursuant to Civil Local Rule 72-1 and ADR Local Rule 7-2 this matter is referred to
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Magistrate Judge Vadas to conduct a further settlement conference. The settlement conference

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shall be conducted by within 90 days from the date of this order, if possible. The Court

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HEREBY CONTINUES the pretrial conference to December 7, 2015 at 8:00 a.m., jury

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selection to January 6, 20116 at 8:00 a.m., and trial to January 11, 2016 at 8:00 a.m.

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IT IS SO ORDERED.

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Dated: June 15, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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