Sturgis v. Rupf et al

Filing 62

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF'S REQUEST FOR LEAVE TO AMEND; ORDER OF SERVICE; REFERRING CASE TO PRO SE PRISONER SETTLEMENT PROGRAM by Judge Lucy H. Koh denying 34 Motion for Summary Judgment; granting 58 Motion for Discovery (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 1/24/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LAMOS WAYNE STURGIS,

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Plaintiff,
v.

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DEPUTY SHERIFF DROLLETE, et al.,
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Defendants.
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No. C 10-3680 LHK (PR)
ORDER DENYING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT;
GRANTING PLAINTIFF’S
REQUEST FOR LEAVE TO
AMEND; ORDER OF SERVICE;
REFERRING CASE TO PRO SE
PRISONER SETTLEMENT
PROGRAM

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Plaintiff, a state prisoner, filed an amended pro se prisoner complaint under 42 U.S.C.
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§ 1983, arguing that Defendant Deputies Drollete and Fitzgerald used excessive force upon him,
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in violation of the Eighth Amendment. On June 23, 2011, Defendants filed a motion for
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summary judgment. Plaintiff filed an opposition. Defendants filed a reply, and Plaintiff filed a
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“rebuttal” to Defendants’ reply. Having carefully considered the papers submitted, Defendants’
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motion for summary judgment is DENIED. Plaintiff has also requested leave to amend his
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amended complaint to add a former “John Doe” Defendant. Plaintiff’s request is GRANTED.
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The Court will order service upon Defendant Deputy Shawn Welch.
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BACKGROUND
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Plaintiff filed this action, alleging that Defendant Deputies Drollete, Fitzgerald, and other
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unnamed deputies used excessive force against him, which resulted in Plaintiff’s left arm being
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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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broken, as well as other injuries. In response, Defendants argue that Plaintiff suffered injury

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only because they were attempting to restore discipline and protect the safety of the officers.

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The following facts are viewed in the light most favorable to Plaintiff.

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On August 21, 2009, Plaintiff was housed in the D module at Martinez Detention Facility

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in Martinez, California. (Decl. Welch at ¶ 3.) The D module unit is reserved for inmates who

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are in administrative segregation for a variety of reasons. (Id. at ¶ 4.) Because of Plaintiff’s

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violent history with staff and other inmates, he was housed in the D Module Unit. (Id. at ¶ 5.)

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At 2:35 a.m., Deputy Welch told Plaintiff to pack his things because in ten minutes, he was

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going to be transported to San Quentin State Prison. (Id. at ¶¶ 6-7; Decl. Plaintiff at ¶ 3.)

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Deputy Welch informed Plaintiff that if he was not ready in ten minutes, Deputy Welch would

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“come in [Plaintiff’s] cell with a few deputies and show [Plaintiff] how to get ready.” (Decl.

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Plaintiff at ¶ 3.) When Plaintiff responded that he needed more time to get ready, Deputy Welch

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replied, “You will be ready or you will wish you had been ready.” (Id.)

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Eighteen minutes later, Deputy Welch asked Plaintiff if he was ready to go. (Decl.

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Welch at ¶ 8.) Plaintiff responded that he needed more time. (Id.) Because Welch was aware of

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Plaintiff’s history, he requested escorts to assist in packing up the remainder of Plaintiff’s

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property and transporting Plaintiff to San Quentin. (Id. at ¶ 9.) Deputies Drollete, Fitzgerald,

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and Brand arrived in response to this request. (Id.) Deputy Welch opened the food port and

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ordered Plaintiff to come to the door to be handcuffed for officer safety. (Id. at ¶ 12; Decl.

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Fitzgerald at ¶ 8.) Plaintiff heard one deputy say, “You will be leaving the hard way.” (Decl.

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Plaintiff at ¶ 4.)

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Plaintiff began to comply with the order to cuff-up when the cell door opened, and

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Plaintiff’s hands were placed behind his back. (Id.) Plaintiff saw the deputies rush into the cell,

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and one of them pushed his face down, causing Plaintiff to fall onto the floor. (Id.) Plaintiff did

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not resist, and felt one or two deputies punching him in the back of his head, as well as the side

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of his torso. (Id.) Plaintiff saw Deputy Fitzgerald kick his torso and hip area while Deputy

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Drollete was twisting Plaintiff’s left arm with such force that his arm broke. (Id.) Plaintiff was

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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in severe pain and slipped in and out of consciousness. (Id.) When Plaintiff regained

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consciousness, he woke up in the Contra Costa County Regional Medical Center with a broken

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left elbow. (Id. at ¶ 5 and Ex. A.)

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ANALYSIS
I.

Request to Amend to Add Defendant Deputy Welch
As an initial matter, Plaintiff requests leave to add Deputy Welch as a Defendant because

Deputy Welch was a participant in the incident. Defendants oppose this request.

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A plaintiff may amend the complaint “once as a matter of course within [] 21 days after

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serving it.” Fed. R. Civ. P. 15(a)(1)(A). But, if the complaint requires a responsive pleading, a

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plaintiff may amend the complaint “21 days after service of a responsive pleading, or 21 days

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after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P.

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15(a)(1)(B). In all other cases, a plaintiff must obtain the defendant’s consent or leave of Court

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to amend a complaint. Fed. R. Civ. P. 15(a)(2).

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It lies within the district court’s discretion whether a plaintiff may expand his complaint

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by substituting defendants for the first time on summary judgment. See Brass v. County of Los

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Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003) (upholding district court’s finding that

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plaintiff’s attempt to substitute new defendants for “Doe” defendants for the first time in his

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motion for summary judgment was “inappropriate” where plaintiff did not request leave to add

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new parties or file an amended complaint). A district court should consider whether any

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proposed amendment results from undue delay, is made in bad faith, will cause prejudice to the

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opposing party, or is a dilatory tactic. Chodos v. West Publishing Co., 292 F.3d 992, 103 (9th

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Cir. 2002). Here, in the Court’s initial order of service, it dismissed Doe Defendants, and

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instructed Plaintiff that he could move to amend at a later date if he discovered the identities of

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those Doe Defendants. There is no indication that Plaintiff’s request for leave to amend is made

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for any improper purpose or that would cause prejudice to the opposing party. Thus, in this

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Court’s discretion, Plaintiff’s request for leave to add Deputy Welch as a named Defendant is

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GRANTED.

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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II.

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Exhaustion
Defendants raise the affirmative defense of non-exhaustion in their reply to Plaintiff’s

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opposition to the motion for summary judgment. While it is true that Plaintiff raised the issue of

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exhaustion in his opposition by stating that he filed a claim with the Contra Costa Board of

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Supervisors, a nonexhaustion claim should be raised by Defendants in an unenumerated Rule

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12(b) motion rather than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108,

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1119 (9th Cir. 2003).

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Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 549 U.S. 199,
217-18 (2007). Defendants have the burden of raising and proving the absence of exhaustion,

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and inmates are not required to specifically plead or demonstrate exhaustion in their complaints.

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Id. at 215-17. As there can be no absence of exhaustion unless some relief remains available, a

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movant claiming lack of exhaustion must demonstrate that pertinent relief remained available.

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Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).

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Even assuming that this affirmative defense is properly before the Court, Defendants

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have not met their burden of demonstrating that pertinent relief remained available. Defendants

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argue that Plaintiff did not avail himself of any of the grievance procedures at Martinez

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Detention Center. However, Defendants offer no evidence in support of their argument. For

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example, Defendants provide no declarations demonstrating that any grievance procedures were

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available, or that Plaintiff did not use those procedures. Because Defendants have not met their

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burden, the Court will not dismiss Plaintiff’s claim for failure to exhaust. See Wyatt, 315 F.3d at

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1119.

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III.

Motion for Summary Judgment

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A.

Standard of Review

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Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

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that there is “no genuine issue as to any material fact and that the moving party is entitled to

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

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

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

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verdict for the nonmoving party. Id.

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

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

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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving

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party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. But on an issue for which the

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opposing party will have the burden of proof at trial, as is the case here, the moving party need

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only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id.

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at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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

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genuine issue for trial.” Fed. R. Civ. P. 56(e). The Court is only concerned with disputes over

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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Liberty Lobby, Inc., 477 U.S. at 248. It is not the task of the court to scour the record in search

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of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The

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nonmoving party has the burden of identifying, with reasonable particularity, the evidence that

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precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the

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

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At the summary judgment stage, the Court must view the evidence in the light most

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favorable to the nonmoving party: if evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the judge must assume the truth of the evidence set

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forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,

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1158 (9th Cir. 1999).

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B.

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Plaintiff alleges that Defendants used excessive force against him, in violation of his

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Legal Claim

Eighth Amendment right against cruel and unusual punishment. Defendants argue that they are

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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entitled to summary judgment because, based on the undisputed facts, they did not violate

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Plaintiff’s constitutional rights. In the alternative, Defendants contend they are entitled to

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qualified immunity.

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The arbitrary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). When 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 for the very purpose of causing harm. Id. at 6-7. In

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

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

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

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

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efforts made to temper the severity of a forceful response. Id. at 7. In reviewing these factors,

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courts must accord prison administrators wide-ranging deference in the adoption and execution

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of polices and practices to further institutional order and security. Jeffers v. Gomez, 267 F.3d

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895, 917 (9th Cir. 2001).

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Taking the evidence in the amended complaint as true, and drawing all inferences

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therefrom in Plaintiff’s favor, there is a genuine issue of material fact as to whether Defendants’

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use of force was excessive. According to Plaintiff, he complied with Defendants’ orders to cuff-

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up, and did not resist Defendants when they entered his cell. Plaintiff’s version of events differs

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greatly from Defendants’ version of events. Accepting Plaintiff’s account as true, as this Court

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must, an inference could certainly be drawn that Defendants assaulted Plaintiff for the purpose of

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causing harm.

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Having concluded that genuine issues of material fact exist as to whether Defendants

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used excessive force against Plaintiff in violation of the Eighth Amendment, the Court next

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addresses whether they are entitled to qualified immunity. The defense of qualified immunity

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protects “government officials . . . from liability for civil damages insofar as their conduct does

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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not violate clearly established statutory or constitutional rights of which a reasonable person

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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A Court considering a

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claim of qualified immunity must determine whether the Plaintiff has alleged the deprivation of

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an actual constitutional right and whether such right was clearly established such that it would be

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clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See

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Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Regarding the first prong, the threshold

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question must be, taken in the light most favorable to the party asserting the injury, do the facts

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alleged show the officer’s conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194,

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201 (2001). The inquiry of whether a constitutional right was clearly established must be

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undertaken in light of the specific context of the case, not as a broad general proposition. Id. at

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202. The relevant, dispositive inquiry in determining whether a right is clearly established is

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whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

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confronted. Id.

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The Court finds granting summary judgment on the ground of qualified immunity is

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improper in this case. A dispute of fact exists as to whether Plaintiff disregarded and resisted

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Defendants’ orders and attempts to “cuff-up”. Resolving all factual disputes in favor of Plaintiff,

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the Court concludes Defendants violated Plaintiff’s clearly established right to be free from

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excessive force. See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003) (“the law

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regarding a prison guard’s use of excessive force was clearly established by 1994”). Granting

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summary judgment on the ground of qualified immunity is “improper if, under the plaintiff’s

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version of the facts, and in light of the clearly established law, a reasonable officer could not

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have believed his conduct was lawful.” Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir.

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2000). Here, no reasonable officer could believe that assaulting and breaking Plaintiff’s arm

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under Plaintiff’s version of the facts was permitted under the Eighth Amendment.

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In sum, accepting Plaintiff’s allegations as true, there is a genuine issue of fact as to
whether Defendants violated Plaintiff’s constitutional rights. Accordingly, Defendants are not

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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entitled to summary judgment, nor are they entitled to qualified immunity.1

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IV.

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Referral to Pro Se Prisoner Settlement Program
Prior to setting this matter for trial and appointing pro bono counsel to represent Plaintiff

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for that purpose, the Court finds good cause to refer this matter to Judge Vadas pursuant to the

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Pro Se Prisoner Settlement Program for settlement proceedings on the claim set forth above.

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The proceedings will consist of one or more conferences as determined by Judge Vadas. The

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conferences shall be conducted with Defendants, or their representative, attending by

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videoconferencing if they so choose. If these settlement proceedings do not resolve this matter,

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the Court will then set this matter for trial and consider a motion from Plaintiff for appointment

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of counsel.

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CONCLUSION

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1.

Defendants’ motion for summary judgment is DENIED.

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, copies of the amended

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complaint in this matter (docket no. 28), all attachments thereto, and copies of this Order on

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Deputy Shawn Welch at the Sheriff’s Office of Contra Costa County. The Clerk shall also

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serve a copy of this Order on Plaintiff and Defendants’ counsel.

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Defendant Deputy Welch is cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires him to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendant Deputy Welch, after being notified of this action and asked by

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the Court, on behalf of Plaintiff, to waive service of the summons, fails to do so, he will be

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required to bear the cost of such service unless good cause be shown for his failure to sign and

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return the waiver form.

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3.

The instant case is REFERRED to Judge Vadas pursuant to the Pro Se Prisoner

Settlement Program for settlement proceedings on the remaining claim in this action, as

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In light of the Court’s denial of Defendants’ motion for summary judgment, Plaintiff’s
motion for a continuance to request discovery under former Rule 56(f) is DENIED as moot.
Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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described above. The proceedings shall take place within one-hundred twenty (120) days of

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the filing date of this order. Judge Vadas shall coordinate a time and date for a settlement

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conference with all interested parties or their representatives and, within ten (10) days after the

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conclusion of the settlement proceedings, file with the Court a report regarding the prisoner

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settlement proceedings. If these settlement proceedings to do not resolve this matter, Plaintiff

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can file a renewed motion for appointment of counsel, and the Court will then set this matter for

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trial.

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4.

The Clerk of the Court shall mail a copy of the Court file, including a copy of

this order, to Judge Vadas in Eureka, California.

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5.

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IT IS SO ORDERED.

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The instant case is STAYED pending the settlement conference proceedings.

DATED: _________________
1/23/12
LUCY H. KOH
United States District Judge

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Order Denying Defendants’ Motion for Summary Judgment; Granting Plaintiff’s Request for Leave to Amend;
Order of Service; Referring Case to Pro Se Prisoner Settlement Program
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