Turner Jr. v. San Diego Central Jail et al

Filing 104

ORDER: The Report and Recommendation (Dkt # 93 ) is adopted in part and not adopted in part. With respect to Plaintiff's second and third claims, and all claims against San Diego County, the Report and Recommendation is adopted. Otherwise the Report and Recommendation is not adopted. Defendants' Motion for Summary Judgement (Dkt # 78 ) is granted in part and denied in part. Signed by Judge William Q. Hayes on 1/19/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

DAVID B. TURNER,

CASE NO. 13cv1133-WQHBGS

13
14
15

vs.
COUNTY OF SAN DIEGO

18
19
20
21
22
23
24
25
26
27
28

ORDER

Defendants.

16
17

Plaintiff,

HAYES, Judge:
The matters before the Court is the Report and Recommendation by the United
States Magistrate Judge Bernanard G. Skomal (ECF No. 93), recommending that
Defendants’ Motion for Summary Judgment be granted in part and denied in part (ECF
No. 78).
I. Background
On June 13, 2014, Plaintiff, a former prisoner proceeding pro se, filed a Second
Amended Complaint alleging three counts of constitutional violations. (ECF No. 55).
In Count One, Plaintiff alleges violations of Plaintiff’s Eighth, Fourteenth, Fourth, and
Sixth Amendment rights based on an altercation with Defendant wherein Plaintiff
sustained an injury above his eye. In Count Two, Plaintiff alleges violations of
Plaintiff’s “[a]cess to courts [and] freedom from cruel and unusual punishment” arising
from time spent in disciplinary segregation wherein Plaintiff claims he was denied use
-1-

13cv1133-WQH-BGS

1 of the phone and the shower. Id. at 4. In Count Three, Plaintiff alleges that Plaintiff’s
2 “freedom of religion [and] freedom of association” were violated because he was
3 “denied the rights [sic] to go to religious service.” Id. at 5.
4

On September 30, 2014, Defendants filed an answer to Plaintiff’s Second

5 Amended Complaint. (ECF No. 70). On August 17, 2015, Defendants filed a Motion
6 for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 78).
7 On October 5, 2015, Plaintiff filed his opposition. (ECF No. 83). Given the brevity of
8 Plaintiff’s opposition, the Court required no reply brief. (ECF No. 84).
9

On November 18, 2015, the Magistrate Judge issued the Report and

10 Recommendation, recommending that Defendants’ Motion for Summary Judgment be
11 granted in part and denied in part. (ECF No. 93). The docket reflects that no objections
12 have been filed to the Report and Recommendation.
13 II. Factual Background
14 A. March 20, 2013—Plaintiff Arrives at San Diego Central Jail
15

Plaintiff arrived at the San Diego Central Jail (“Central Jail”) at 6:00 a.m. on

16 March 20, 2013, after being arrested on charges of being under the influence of a
17 controlled substance. (Def. Ex. A). The medical examiner at the Central Jail
18 determined that Plaintiff could not complete the booking process until he was no longer
19 under the influence of what was believed to be a controlled substance. (Def. Exs. A and
20 B). While in the sobering cell, jail staff frequently monitored Plaintiff and recorded
21 their observations. (Def. Ex. C). Sheriff’s Deputy Walch filed an incident report which
22 described Plaintiff as “verbally aggressive,” and “pounding on the window.” (Def. Ex.
23 E). According to Defendants, Plaintiff resumed the booking process at 3:26 p.m. on
24 March 20, 2013. (ECF No. 78-1 at 3).
25 B. March 21, 2013—Altercation
26

a. Defendants’ Version of the Altercation

27

On March 21, 2013, a number of deputies transporting new inmates for

28 processing gathered near Plaintiff’s holding cell. Id. Incoming inmates alleged to have
-2-

13cv1133-WQH-BGS

1 committed misdemeanor offenses were identified by a purple wristband, signaling that
2 they could be released after booking. Id. at 4. As inmates exited the elevator,
3 Defendant Seeley ordered those wearing a purple wristband to line up along the wall
4 across from the elevator doors. Id. at 4; see also Def. Ex. G, Clip No. 2. At the same
5 time, the door to Plaintiff’s holding cell had been opened so the new inmates could
6 enter. (ECF No. 78 at 4). Plaintiff exited the holding cell, at which point Defendant
7 Seeley ordered him to go back into his cell. Id. at 4; see also Def. Ex. G, Clip No. 1.
8 Plaintiff responded by striking in the direction of Defendant Seeley. Def. Ex. G, Clip
9 No. 1; Def. Ex. H at 43. Defendant Seeley drew his taser, but did not deploy it because
10 Plaintiff had started to retreat back into the cell. (ECF No. 78-1 at 4); Def. Ex. G, Clip
11 No. 1.
12

Moments later, Corporal Riley (“Riley”) arrived and deployed his taser. (ECF

13 No. 78-3 at ¶ 5). According to Riley’s declaration, the taser did not make contact with
14 Plaintiff’s skin, which allowed Plaintiff to remove the probes from his clothing without
15 being incapacitated. Id. at ¶¶ 5-8. Riley states that he ordered Plaintiff to stop trying
16 to remove the taser probes, but Plaintiff did not comply. Id. at ¶¶ 5, 6. As a result,
17 Riley activated the taser for a second cycle. Id. at ¶ 6.
18

Plaintiff continued to be combative and resisted efforts to restrain him. Id. at ¶

19 8. Plaintiff was “lying on his back in the cell with his feet facing the cell door when
20 Defendant Seeley entered the cell and used both of his hands to grab [Plaintiff]’s feet.”
21 Id. Defendant Seeley “lifted [Plaintiff]’s lower body off the floor and attempted to roll
22 him over onto his stomach[,]” but Plaintiff “began to thrash around violently in an
23 attempt to either strike at deputies or get away from their control.” Id. According to
24 Riley, Defendant Saunders then “entered the cell to assist Defendant Seeley” and
25 attempted to turn Plaintiff over, when Plaintiff “swung his arm to strike [Defendant]
26 Saunders.” Id. at ¶ 9. Defendant Saunders delivered two closed fist strikes with his
27 right hand to the right side of Plaintiff’s face, which were ineffective because Plaintiff
28 “continued to struggle, kick and attempt to punch” Defendant Saunders. Id. Defendant
-3-

13cv1133-WQH-BGS

1 Saunders then used his right knee to strike the right side of Plaintiff’s upper chest. Id.
2

At that point, Defendant Saunders notified the other deputies that Plaintiff had

3 started bleeding. Id. Defendant Torres then delivered four knee strikes to the left side
4 of Plaintiff’s lower back, at which point Plaintiff rolled onto his stomach. Id.
5 Defendant Saunders “placed his right knee on [Plaintiff]’s upper back to prevent him
6 from attempting to stand up or roll over.” Id. Defendant Seeley then placed “leg chains
7 on [Plaintiff]’s ankles,” and “Defendant Balay used both of his hands to take cross [sic]
8 [Plaintiff]’s legs” to prevent him from “twisting or being able to kick at deputies.” Id.
9 at ¶ 10. Defendant Norie used both of his hands to apply “bodyweight to the back of
10 [Plaintiff]’s legs” and “placed his right knee on the back of [Plaintiff]’s left shoulder to
11 prevent him from rolling over and potentially striking a deputy.” Id. at ¶ 11.
12 Defendant Torres used “both of his hands to force [Plaintiff]’s left arm behind his back”
13 while Defendant Saunders did the same with Plaintiff’s right arm. Id.
14

Defendant Balay “placed a handcuff on [Plaintiff]’s right wrist” and Defendant

15 Torres “secured the handcuffs to [Plaintiff]’s left wrist.” Id. Defendant Warren
16 “applied bodyweight with both of his knees to [Plaintiff]’s lower back area to keep
17 [Plaintiff] from standing and continuing to fight.” Id. Because Plaintiff was bleeding,
18 Defendant Norie “placed a spit sock over [Plaintiff]’s head to prevent him from spitting
19 or spraying blood on deputies.” Id. Once restrained, Defendants escorted Plaintiff to
20 the jail medical clinic via gurney. (ECF No. 78-3 ¶ 12). Plaintiff sustained a laceration
21 above his right eye. Id.
22

b. Plaintiff’s Version of the Altercation

23

Plaintiff’s SAC states that he “was on the ground being held down by Corp.

24 Seeley #3663, Deputy Belay [sic] #0040, Deputy Norie #0132, Deputy Torres #5699,
25 and Deputy Warren #7805.” (ECF No. 55 at 3). Plaintiff states that he “was being
26 tased repeatedly, and kicked repeatedly.” Id. He continues that “[he] was in hand-cuffs
27 when Corp. Saunders #7294 walked in the holding cell, and began punching and
28 kicking [Plaintiff] in his head or right eye until [Plaintiff] started to pour blood from his
-4-

13cv1133-WQH-BGS

1 face or right eye.” Id. Plaintiff attaches inmate grievances to his SAC, one of which
2 states in pertinent part that he was “hit in [his] eye by one of the staff with his hand and
3 punched 6-7 times while on the ground handcuffed[.]” (Plaintiff Ex. 2). In another
4 grievance form, Plaintiff states that after this incident he suffered injuries to his “eye,
5 back, neck and great mental destress [sic] that incapacitated [him] mentally and
6 physically . . . .” (Platiniff Ex 3). Plaintiff’s two additional grievances generally
7 recount his allegations of excessive force. (See Plaintiff Exs. 3 and 7).
8 C. Medical Care Following the March 21, 2013 Altercation
9

Medical records from San Diego Sheriff’s Department on March 21, 2013,

10 indicate that Plaintiff initially refused consent to repair the laceration, and would not
11 cooperate for the motor examination or assessment of his wound. (Def. Ex. I at 2).
12 Plaintiff eventually received six sutures without complications. Id. at 2-3.
13

Later on March 21, 2013, employee Desilva reported that Plaintiff’s sutures

14 remained intact, the dressing was clean and dry, and there was no active bleeding from
15 the wound. (Def. Ex. J at 4). Jail personnel checked and changed Plaintiff’s dressing
16 on March 21, 2013, id. at 5; March 23, 2013, id. at 6; March 24, 2013, id. at 7; and
17 March 27, 2013, id. at 9. Plaintiff refused consent to change the dressing on his
18 laceration on March 22, 2013, id. at 5; and March 26, 2013, id. at 8. On March 28,
19 2013, medical staff removed Plaintiff’s sutures without complication, id. at 10, and
20 checked him again the following day. Id. at 11.
21 D. Plaintiff is Charged for his Conduct on March 20, 2013 and March 21, 2013 and
22 Enters Disciplinary Isolation
23

On March 22, 2013, Deputy Campbell wrote a jail incident report documenting

24 Plaintiff’s March 20, 2013 violations of Inmate Rules and Regulations #101 (Inmate
25 shall treat facility staff in a civil fashion), #103 (Inmates shall not assault any other
26 inmate or staff), #105 (Inmate shall not take part in aggressive or boisterous activity)
27 and #701 (Inmates shall not delay jail operations), which took place while Plaintiff was
28 housed in the sobering cell. (Def. Ex. N). As a result of these charges, Plaintiff entered
-5-

13cv1133-WQH-BGS

1 security lockdown pending a disciplinary hearing. (Def. Ex. P). A hearing conducted
2 pursuant to California Code of Regulations Title 15 Article 7 took place on March 24,
3 2013. (Def. Ex. R). Plaintiff received eight days disciplinary isolation and was released
4 on April 1, 2013. Id.
5

Plaintiff was also charged for violating California Penal Code § 69 (resisting a

6 peace officer with violence) and § 243 (c)(1) (battery on a peace officer causing minor
7 injury). (Def. Ex. K; ECF No. 78-3 ¶ 12). On April 20, 2013, Plaintiff pled guilty to
8 Penal Code § 69, a felony charge, for violently resisting an executive officer. (Def. Ex.
9 M). The criminal complaint alleged,
10
11
12
13

On or about March 21, 2013, DAVID BRYAN TURNER did unlawfully
attempt by means of threats and violence to deter and prevent another who
was then and there an executive officer from performing a duty imposed
upon such officer by law, and did knowingly resist by use of force and
violence said executive officer in the performance of his/her duty, in
violation of PENAL CODE SECTION 69.

14 On April 30, 2013, Plaintiff signed a Plea of Guilty Form under penalty of perjury on
15 admitting the following: “[He] did unlawfully prevent an officer from performing his
16 duty with means of threats and violence.”1 Id. Subsequent to his guilty plea, in his
17 statement to his probation officer regarding the altercation, Plaintiff stated: “I was
18 getting mad. When they came to the door I was mad. It wasn’t nothing towards them
19 (deputies). I was toying with them like they were toying with me. It was spur of the
20 moment. I didn’t mean to hit nobody. I was just mad because I was locked up.” (Def.
21
22
23
24
25
26
27
28

1

Defendants do not argue that any claims are barred by Heck v. Humphrey,
512 U.S. 477 (1994). The Court nonetheless concludes that Heck is inapplicable on
these facts, as Plaintiff’s allegation is that he had ceased resisting and had been
restrained in handcuffs before the excessive force was employed. See Smith v. City of
Hemet, 394 F.3d 689 (9th Cir. 2005) (Finding that a § 1983 action was not barred,
despite the prisoner’s guilty plea to resisting arrest “because the excessive force may
have been employed against him subsequent to the time he engaged in the conduct that
constituted the basis for his conviction); see also Sanford v. Motts, 258 F.3d 1117, 1120
(9th Cir. 2001) (“[I]f [the officer] used excessive force subsequent to the time Sanford
interfered with [the officer’s] duty, success in her section 1983 claim will not invalidate
her conviction. Heck is no bar.”); cf. Hooper v. County of San Diego, 629 F.3d 1127,
1134 (9th Cir. 2011) (holding that a conviction for resisting arrest under Cal. Penal
Code § 148(a) (1) does not “bar a § 1983 claim for excessive force under Heck [if] the
conviction and the § 1983 claim are based on different actions during ‘one continuous
transaction.’ ”).
-6-

13cv1133-WQH-BGS

1 Ex. L at 3). On May 29, 2013, Judge Moring sentenced Plaintiff to the upper term of
2 three years in prison. (Def. Ex. M).
3 E. Plaintiff’s Grievances
4

Grievance forms are readily available and provided for all inmates to complete

5 and submit, with three successive levels of subsequent review in which facility staff can
6 resolve the grievance. (ECF No. 78 at 21). Each level of review provides the inmate
7 with a written response and a resolution or reasons for its denial. (ECF No. 78-4 ¶¶ 1-5;
8 Def. Ex. T).
9

The first level of review is conducted by a first level supervisor. (ECF No. 78

10 at 21). If an inmate is not satisfied with the proposed resolution of his grievance at the
11 first level, he can appeal to an intermediate level of review conducted by a sworn
12 supervising officer designated as the jail facility’s grievance review officer. Id. If an
13 inmate is dissatisfied with the proposed resolution at that level of review, he can appeal
14 the decision to the third and final level of review conducted by the Facility Commander.
15 (ECF No. 78-4 ¶¶ 4-7; Def. Ex. T).
16

Plaintiff attached eight inmate grievances to his SAC, each of which will be

17 discussed in the context of the causes of action to which they relate.
18

a. Count One: Cruel and Unusual Punishment (Excessive Force)

19

Plaintiff filed three inmate grievances recounting the altercation that took place

20 on March 21, 2013 and alleging the use of unreasonable force. (Plaintiff Exs. 2, 3, 7).
21 A grievance filed on March 30, 2013, states that Plaintiff “was hit in [his] eye by one
22 of the staff with his hand and punched 6 or 7 times while on the ground handcuffed[.]”
23 A second grievance filed on April 16, 2013, requests an “Internal Affairs form” and
24 “further investigation” regarding an “injury to [his] right eye.” (Plaintiff Ex. 7).
25 Plaintiff filed his third grievance relating to Count One on May 1, 2014, stating that he
26 sustained “injuries to his eye, back, neck” as well as “mental distress” as a result of
27 “unreasonable force.” Plaintiff Ex. 3).
28

An undated lodgment appears to be a response to one of the three grievances, and
-7-

13cv1133-WQH-BGS

1 explains that the “force used during your altercation was deemed necessary for the
2 circumstances to gain control over you and to protect [the staff] from your violent
3 assault.” (Plaintiff Ex. 1). Plaintiff also submits a “Notice of Rejection of Claim” from
4 San Diego Office of County Counsel dated February 5, 2014. (Plaintiff Ex. 10).
5 Plaintiff did not provide an explanation of this lodgment. According to the notice, it
6 relates to an incident that took place on December 3, 2013. (Plaintiff Ex. 10). The
7 incident at issue in this case took place on March 21, 2013, and the Court is not aware
8 of any incidents at issue in this matter that took place on December 3, 2013, thus the
9 relevance of this lodgment is unclear.
10

At the end of April, Plaintiff filed two inmate grievances describing continued

11 back pain and headaches and requesting a CAT-scan. (Plaintiff Exs. 8, 9). According
12 to San Diego Sheriff’s Department Medical Chart, an employee referred Plaintiff to
13 “MDSC” for back pain (Def. Ex. S at 1.), where he saw Steve Aguilar on May 2, 2013.
14 Id. at 2-4.
15

b. Count Two: Cruel and Unusual Punishment (Access to Courts)

16

As a result of Plaintiff’s March 24, 2013 disciplinary hearing, Plaintiff received

17 eight days isolation and was released on April 1, 2013. (Def. Ex. R.) Plaintiff’s Count
18 Two states that this period of isolation impacted his “access to the courts and to [his]
19 lawyers.” (ECF No. 55 at 4). Plaintiff states in an inmate grievance that, during this
20 disciplinary isolation, he could not leave his cell for a period of twenty-four hours
21 between March 30, 2013 and April 2, 2013, and he was not permitted to shower for “2
22 or 3” days. (Plaintiff Ex. 6). On April 1, 2013, Plaintiff filed an Inmate Grievance
23 stating that he had not been given time to call his attorney regarding an upcoming trial.
24 (Plaintiff Ex. 5).
25

c. Count Three: Freedom of Religion

26

On April 7, 2013, Plaintiff filed an Inmate Grievance stating that he was “denied

27 the right for [sic] religious services.” (Plaintiff Ex. 4). His SAC explains that he
28 needed to attend services to help him feel better after the altercation with the officers.
-8-

13cv1133-WQH-BGS

1 (ECF No. 55 at 5)/
2 III. Discussion
3

A. Standard of Review

4

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state

5 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of
6 Civil Procedure 8(a) provides that “[a] pleading that states a claim for relief must
7 contain ... a short and plain statement of the claim showing that the pleader is entitled
8 to relief.” Fed. R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to state a
9 claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a
10 cognizable legal theory or the absence of sufficient facts alleged under a cognizable
11 legal theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)
12 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
13

“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

14 requires more than labels and conclusions, and a formulaic recitation of the elements
15 of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
16 (quoting Fed. R. Civ. P. 8(a)). “To survive a motion to dismiss, a complaint must
17 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
18 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
19 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
20 content that allows the court to draw the reasonable inference that the defendant is liable
21 for the misconduct alleged.” Id. (citation omitted). “[T]he tenet that a court must
22 accept as true all of the allegations contained in a complaint is inapplicable to legal
23 conclusions. Threadbare recitals of the elements of a cause of action, supported by
24 mere conclusory statements, do not suffice.” Id. (citation omitted). “When there are
25 well-pleaded factual allegations, a court should assume their veracity and then
26 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “In
27 sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content,
28 and reasonable inferences from that content, must be plausibly suggestive of a claim
-9-

13cv1133-WQH-BGS

1 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2 2009) (quotations and citation omitted).
3
4
5

B. Plaintiff’s First Cause of Action: Use of Excessive Force
1. Parties’ Arguments
Defendants contend that their use of force against Plaintiff was reasonable and

6 justified based on Plaintiff’s assaultive behavior. (ECF No. 78 at 17:26-18:4). Plaintiff
7 admitted in his deposition that he threw punches at the air (Def. Ex. H at 43:15) and
8 tried to remove the taser darts from his clothing. Id. at 44:13-20. The video lodged
9 with the Court shows that the deputies pushed Plaintiff back into the cell and attempted
10 to close the cell door, but Plaintiff blocked the door from closing and struck in the
11 direction of the deputies. (Def. Ex. G, Clip No. 1). The Court notes that the video
12 footage is only helpful in confirming Plaintiff’s initial combative behavior. The camera
13 angle does not reveal anything that took place inside Plaintiff’s cell, where the majority
14 of the altercation took place.
15

Plaintiff alleges that Defendants Seeley, Balay, Torres, Warren and Norie used

16 excessive force when they “repeatedly” “tased” and “kicked” him. (ECF No. 55 at 3).
17 Plaintiff further contends that after he was handcuffed “Corp. Saunders #7294 walked
18 in the holding cell, and began punching and kicking [Plaintiff] in his head or right eye,
19 until [Plaintiff] started to pour blood from his face or right eye.” (ECF No. 55 at 3); see
20 also (Plaintiff Ex. 2 (“I was hit in my eye by one of the staff with his hand and punched
21 6-7 times while on the ground handcuffed”)).
22
23

2. Standard
The Eighth Amendment’s prohibition against the malicious or sadistic use of

24 force, see Hudson v. McMillian, 503 U.S. 1, 7 (1992), does not apply “until after
25 conviction and sentence.” Graham v. Connor, 490 U.S. 386, 392 n.6 (1989). Pretrial
26 detainees, which was Plaintiff’s status at the time of the altercation, are instead
27 protected by substantive due process, and may also challenge the use of force against
28 them under the Fourteenth Amendment if that force is so excessive that it amounts to
- 10 -

13cv1133-WQH-BGS

1 punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process
2 Clause, a detainee may not be punished prior to an adjudication of guilt in accordance
3 with due process of law.”); see also Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004)
4 (“The more protective fourteenth amendment standards apply to conditions of
5 confinement when detainees . . . have not [yet] been convicted of a crime.” (Citation
6 omitted)). Thus, pretrial detainees, “retain at least those constitutional rights that we
7 have held are enjoyed by convicted prisoners.” Bell, 441 U.S. at 545; Redman v.
8 County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991) (en banc).
9

A pretrial detainee must show “that the force purposely or knowingly used

10 against him was objectively unreasonable.” Kingsley v. Hendrickson, __ U.S. __, 135
11 S. Ct. 2466, 2473, 192 L. Ed. 2d 416 (2015). Considerations such as the following may
12 bear on the reasonableness or unreasonableness of the force used:
13
14
15

the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.

16
17
18
19
20
21
22
23
24
25
26
27
28

Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). Because this “balancing
nearly always requires a jury to sift through disputed factual contentions, and to draw
inferences therefrom . . . summary judgment or judgment as a matter of law in excessive
force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir.
2002). “That is not to say that every malevolent touch by a prison guard gives rise to
a federal cause of action.” Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights.”)). But, where there is no need for force, any force used is objectively
unreasonable for constitutional purposes. See P.B. v. Koch, 96 F.3d 1298, 1303–04 n.
4 (9th Cir. 1996).
3. Discussion
a. The Relationship Between the Force Needed and the Force
- 11 -

13cv1133-WQH-BGS

1
2

Used
One factor the Court considers in analyzing an excessive force claim is the

3 relationship between the force needed under the circumstances and the force used.
4 Plaintiff has conceded, by pleading guilty to Cal. Penal Code § 69, that he “knowingly
5 resist[ed] by use of force and violence.” (Def. Ex. M). Plaintiff’s uncooperative
6 behavior is corroborated by his deposition testimony where he admits to punching at
7 the air. (Def. Ex. H at 43:15). In response to Plaintiff’s combative behavior, Riley’s
8 declaration states that Defendant Seeley “used both of his hands to grab [Plaintiff]’s
9 feet” (ECF No. 78-3 ¶ 8) and “placed leg chains on [Plaintiff]’s ankles.” Id. at ¶ 10.
10 Defendant Balay “used both of his hands to take cross [sic] [Plaintiff]’s legs and applied
11 downward pressure to prevent him from twisting or being able to kick at deputies.” Id.
12 Defendant Norie “used both of his hands and applied bodyweight to the back of
13 [Plaintiff]’s legs,” and “placed his right knee on the back of [Plaintiff]’s left shoulder
14 to prevent him from rolling over and potentially striking a deputy.” Id. at ¶ 11.
15 Defendant Torres “delivered four knee strikes to the left side of [Plaintiff’s] lower
16 back.” (ECF No. 78-3 ¶ 9). Riley’s declaration also states that Defendant Saunders
17 “deliver[ed] two closed first [sic] strikes with his right hand to the right side of
18 [Plaintiff]’s face[, but] the strikes were not effective.” (ECF No. 78-3 ¶ 9). Because
19 Plaintiff continued to “struggle, kick and attempt to punch[,]” Saunders delivered a knee
20 strike to Plaintiff’s upper chest. Id.
21

Plaintiff’s SAC states that he “was on the ground being held down by Corp.

22 Seeley #3663, Deputy Belay [sic] #0040, Deputy Norie #0132, Deputy Torres #5699,
23 and Deputy Warren #7805.” (ECF No. 55 at 3). Plaintiff states that he “was being
24 tased repeatedly, and kicked repeatedly.” Id. He continues that “[he] was in hand-cuffs
25 when Corp. Saunders #7294 walked in the holding cell, and began punching and
26 kicking [Plaintiff] in his head or right eye until [Plaintiff] started to pour blood from his
27 face or right eye.” Id. Plaintiff states in an inmate grievance that he was already in
28 handcuffs when “one of the staff” punched him in the head six to seven times. (Plaintiff
- 12 -

13cv1133-WQH-BGS

1 Ex. 2). In another grievance form, Plaintiff states that after this incident he suffered
2 injuries to his “eye, back, neck and great mental destress [sic] that incapacitated [him]
3 mentally and physically . . . .” (Plaintiff Ex 3).
4

Based on the contradictory testimony, the Court finds that genuine issues of

5 material fact exist as to whether Defendants use of force under the circumstances was
6 justified, or instead, was so excessive that it amounted to punishment. Bell, 441 U.S.
7 at 535; Jones, 393 F.3d at 934. A rational trier of fact could believe either that
8 Defendants actions were “punitive,” i.e., that they were excessive in relation to a
9 legitimate need to ensure jail security, id., or that they constituted a reasonable and
10 appropriate response to the threat Plaintiff posed. Id.;see also Anderson, 477 U.S. at
11 255 (at summary judgment “[c]redibility determinations, the weighing of the evidence,
12 and the drawing of legitimate inferences from the facts are jury functions, not those of
13 a judge.”).
14
15

b. Extent of Injury
Another factor the Court considers is the extent of the injury suffered by Plaintiff.

16 Plaintiff contests that he suffered from eye, back, and neck pain. (Plaintiff’s Ex. 3, 8,
17 9). It is uncontested that Plaintiff received six stitches above his right eyebrow to close
18 the laceration incurred during the incident with Defendants. (ECF No. 78 at 7:11-13,
19 Def. Ex. I). The uncontested medical evidence supports a finding that the laceration to
20 Plaintiff’s eye was more than de minimus and factors against Defendants’ argument that
21 they applied force in good faith. Therefore, the extent-of-the-injury factor weighs in
22 favor of Plaintiff.
23
24

c. Efforts to Temper the Amount of Force
The Court also considers any efforts by Defendants to temper the force used

25 against Plaintiff. Here, Defendants submit evidence that they incrementally increased
26 the level of force used to restrain Plaintiff. When Plaintiff initially exited the holding
27 cell, Defendant Seeley ordered him to go back into his cell. (ECF No. 78 at 4:8-12; see
28 also Def. Ex. G, Clip No. 1). Plaintiff responded by striking in the direction of
- 13 -

13cv1133-WQH-BGS

1 Defendant Seeley. (Def. Ex. G, Clip No. 1; Def. Ex. H at 43:15). Defendant Seeley
2 drew his taser, but did not deploy it because Plaintiff had started to retreat back into the
3 cell. (ECF No. 78 at 4:25-27; Def. Ex. G, Clip No. 1). Defendant Seeley then placed
4 “leg chains on [Plaintiff]’s ankles,” and “Defendant Balay used both of his hands to
5 take cross [sic] [Plaintiff]’s legs” to prevent him from “twisting or being able to kick
6 at deputies.” Id. at ¶ 10. Defendant Norie used both of his hands to apply “bodyweight
7 to the back of [Plaintiff]’s legs” and “placed his right knee on the back of [Plaintiff]’s
8 left shoulder to prevent him from rolling over and potentially striking a deputy.” Id. at
9 ¶ 11. According to Riley’s declaration, Defendant Saunders “deliver[ed] two closed
10 first [sic] strikes with his right hand to the right side of [Plaintiff]’s face[, but] the
11 strikes were not effective.” ECF No. 78-3 ¶ 9. Because Plaintiff continued to “struggle,
12 kick and attempt to punch[,]” Saunders delivered a knee strike to Plaintiff’s upper chest.
13 Id.
14

Plaintiff admits that he used force initially, but contends that he was being “held

15 down” by Defendants Seeley, Balay, Torres, Warren and Norie and that he was
16 “repeatedly” “kicked” and “tased.” (ECF No. 55 at 3). Further, Plaintiff states
17 Defendant Saunder hit him in the head after Plaintiff was handcuffed. Id.
18

Based on the contradictory testimony, the Court finds that genuine issues of

19 material fact exist as to the effort made by Defendants to temper the amount of force
20 employed against Plaintiff.
21

d. The Threat Reasonably Perceived by Defendant

22

The Court also looks at the threat perceived by the responsible officials.

23 Defendants argue that it was reasonable for them to perceive Plaintiff’s actions as
24 threatening because (1) Plaintiff initiated the confrontation with Defendants by
25 challenging institutional rules when he refused verbal instructions to return to the
26 holding cell, (2) Plaintiff’s actions created the potential to incite other unrestrained
27 inmates to disorder, (3) and Plaintiff attacked Defendants Seeley, Warren, and Deputy
28
- 14 -

13cv1133-WQH-BGS

1 Lotko2. (ECF No. 78 at 19:27-20:2). Defendants further claim that Plaintiff fought
2 with the deputies, and resisted their efforts to handcuff him despite being ordered to
3 stop. (ECF No. 78 at 20:2-5). Plaintiff’s uncooperative behavior is corroborated by his
4 deposition testimony where he admits to punching at the air (Def. Ex. H at 43:15) as
5 well as the video footage that shows Plaintiff refusing to re-enter his cell at the request
6 of the deputies. (Def. Ex. G, Clip No. 1).
7

Plaintiff’s description of the altercation, however, is that he was “held down” and

8 “repeatedly” “tased” and “kicked.” (ECF No. 55 at 3). Plaintiff also contends that he
9 had already been restrained “in handcuffs” when Defendant Saunders “walked in the
10 holding cell, and began punching and kicking [Plaintiff] in his head or right eye.” (ECF
11 No. 55 at 3). At the summary judgment stage, the court must view the evidence in the
12 light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Based on the
13 contradictory testimony, the Court finds that genuine issues of material fact exist as to
14 the threat reasonably perceived by Defendants when they employed force against
15 Plaintiff.
16

C. Qualified Immunity Regarding Claim of Excessive Force

17

Defendants argue that they are entitled to qualified immunity because they did

18 not use excessive force towards Plaintiff. In the alternative, Defendants argue that even
19 if the Court finds Plaintiff’s constitutional rights were violated, they are still entitled to
20 qualified immunity because a reasonable person in their position would have believed
21 their conduct lawful. (ECF No. 78 at 18:19-19:23.)
22

Qualified immunity is not merely a defense to liability, but rather a bar to suit,

23 to avoid the “burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001). Courts
24 make this determination by asking whether the officer’s conduct violated a
25 constitutional right. See id. If no constitutional right is violated, there is “no necessity
26 for further inquiries concerning qualified immunity.” Id. If a right is violated, the court
27
2

is identified by Defendants
Motion for Summary
28 Judgment as Deputy Lotko during the altercation, but hein theirnamed as a Defendant
being present
is not
in Plaintiff’s SAC.
- 15 -

13cv1133-WQH-BGS

1 inquires whether that right was clearly established at the time of the incident. See id.
2 A constitutional right is clearly established when “it would be clear to a reasonable
3 officer that his conduct was unlawful in the situation he confronted.” Id. Lower courts
4 may exercise their sound discretion in deciding the order in which to address Saucier’s
5 two prongs “in light of circumstances in the particular case at hand.” Pearson v.
6 Callahan, 555 U.S. 223, 236 (2009).
7

Because of the factual disputes that Plaintiff has identified, Defendants are not

8 entitled to summary judgment based upon qualified immunity. See Santos v. Gates,
9 287 F.3d 846, 855 n. 12 (9th Cir.2002) (declining to grant qualified immunity “because
10 whether the officers may be said to have made a ‘reasonable mistake’ of fact or law,
11 may depend upon the jury's resolution of disputed facts and the inferences it draws
12 therefrom” (citation omitted)). If Plaintiff’s version of the facts ultimately prevails,
13 Defendants may not be entitled to qualified immunity because the law is clearly
14 established that a reasonable officer should have known that employing force on a
15 pretrial detainee who was either held down and/or handcuffed is a violation of
16 constitutional rights.
17

D. Exhaustion of Available Administrative Remedies Regarding Plaintiff’s

18

Count Two (Cruel and Unusual Punishment) and Count Three (Freedom of

19

Religion)

20

Defendants move for summary judgment as to Counts Two and Three on the

21 grounds that Plaintiff failed to exhaust his available administrative remedies prior to
22 bringing this suit as required by 42 U.S.C. § 1997e. It is well established that
23 non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an
24 affirmative defense which defendant jail officials have the burden of raising and
25 proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162,
26 1168-69 (2014).
27

The Prison Litigation Reform Act (“PLRA”) amended 42 U.S.C. § 1997e(a) to

28 provide that “[n]o action shall be brought with respect to prison conditions under
- 16 -

13cv1133-WQH-BGS

1 section1983 . . . by a prisoner confined in any jail, prison or other correctional facility
2 until such administrative remedies as are available are exhausted.” 42 U.S.C. §
3 1997e(a). “Once within the discretion of the district court, exhaustion in cases covered
4 by § 1997e(a) is now mandatory.” Porter v. Nussle, 534 U.S. 516, 524 (2002). 42
5 U.S.C. § 1997e(a) has been construed broadly to “afford [ ] corrections officials time
6 and opportunity to address complaints internally before allowing the initiation of a
7 federal case,” id. at 525, and to encompass inmate suits about both general
8 circumstances and particular episodes of prison life—including incidents of alleged
9 excessive force. Id. at 532. Finally, “[t]he ‘available’ ‘remed[y]’ must be ‘exhausted’
10 before a complaint under § 1983 may be entertained,” “regardless of the relief offered
11 through administrative procedures.” Booth v. Churner, 532 U.S. 731, 738, 741 (2001);
12 see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that
13 prisoner’s civil rights action must be dismissed without prejudice unless prisoner
14 exhausted available administrative remedies before he filed suit, even if he fully
15 exhausts while the suit is pending).
16

The County of San Diego Sheriff’s Department Detention Services provides

17 inmates the right to administratively appeal any issue related to “any condition of
18 confinement.” (See Def. Ex. T, Policy and Procedure, § N.1, grievance procedure). In
19 order to exhaust available administrative remedies within this system, an inmate must
20 proceed through the following levels: (1) informal resolution, (2) formal written appeal
21 on J-22 Inmate Grievance forms or other writing materials, (3) second level appeal to
22 Grievance Review officer, and (4) third level of appeal to Facility Commander. Id.
23

In this case, Count Two in Plaintiff’s SAC alleges violations of Plaintiff’s

24 “[a]ccess to courts [and] freedom from cruel and unusual punishment” arising from time
25 spent in disciplinary segregation wherein Plaintiff claims he was denied use of the
26 phone and the shower. (ECF No. 55 at 4). On April 1, 2013, Plaintiff filed an inmate
27 grievance stating that he had not been given time to call his attorney about an upcoming
28 trial. (Plaintiff Ex. 5). In an inmate grievance filed on April 2, 2013, Plaintiff states
- 17 -

13cv1133-WQH-BGS

1 that, during this disciplinary isolation, he could not leave his cell for a period of
2 twenty-four hours between March 30, 2013 and April 2, 2013, and he was not permitted
3 to shower for “2 or 3” days. (Plaintiff Ex. 6).

Count Three alleges violations of

4 Plaintiff’s “freedom of religion [and] freedom of association,” based on a claim that
5 Plaintiff “was denied the rights to go to religious service.” (ECF No. 55 at 5). On April
6 7, 2013, Plaintiff filed an Inmate Grievance that he was “denied the right for religious
7 services.” (Plaintiff Ex. 4).
8

Defendants argue that Plaintiff failed to exhaust his available administrative

9 remedies as to Counts Two and Three, by only filing grievances at the first level. As
10 support, Defendants submit a declaration from County Sheriff’s Sgt. Dorothy Patterson
11 which describes the administrative grievance procedure in the San Diego County jails
12 by which all inmate grievances are addressed. (ECF No. 78 at 21). According to that
13 declaration, grievance forms are readily available and provided for all inmates to
14 complete and submit, with three successive levels of subsequent review in which
15 facility staff can resolve the grievance. Id. Each level of review provides the inmate
16 with a written response and a resolution or reasons for its denial. (ECF No. 78-4 ¶¶ 1-5;
17 Def. Ex. T). The first level of review is conducted by a first level supervisor. (ECF No.
18 78 at 21). If an inmate is not satisfied with the proposed resolution of his grievance at
19 the first level he can appeal to an intermediate level of review conducted by a sworn
20 supervising officer designated as the jail facility’s grievance review officer. Id. If an
21 inmate is dissatisfied with the proposed resolution at that level of review, he can appeal
22 this to the third and final level of review conducted by the Facility Commander. (ECF
23 No. 78-4 ¶¶ 4-7; Def. Ex. T.)
24

Defendants have met their burden to show that there is no evidence in the record

25 that Plaintiff exhausted the administrative remedies as to Counts Two and Three.
26 However, it is also Defendants burden to prove that “there was an available remedy.”
27 Williams v. Paramo, __ F.3d __, 2015 WL 74144 at * 7 (9th Cir. 2015). County
28 Sheriff’s Sgt. Dorothy Patterson’s declaration describing the administrative grievance
- 18 -

13cv1133-WQH-BGS

1 procedure in San Diego County jails sufficiently demonstrates that there was an
2 available remedy, and Plaintiff had opportunity to know of that remedy. (See ECF No.
3 78-4). Once the defendant meets that burden, the plaintiff must “come forward with
4 evidence showing that there is something in his particular case that made the existing
5 and generally available administrative remedies effectively unavailable to him.” Albino,
6 747 F.3d at 1172. Plaintiff offers no rebuttal to this showing by Defendants. The Court
7 also notes that Plaintiff was able to successfully navigate the administrate remedy
8 procedures as to Count One, supporting a finding that he knew of the additional levels
9 of review, yet failed to utilize them as to Counts Two and Three. (ECF No. 78 at 21).
10

Plaintiff has failed to rebut Defendants’ showing that he did not properly exhaust

11 his administrative remedies regarding his second and third claims prior to bringing this
12 action. Thus, the Court grants Defendants motion for summary judgment based on
13 failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a).
14

E. Viability of Civil Rights Claims Against Defendant San Diego County

15

Defendants argue that Plaintiff’s allegations of constitutional violations involve

16 only the individual deputies, and do not mention any involvement by the County or cite
17 any purported policy of the County. (ECF No. 78 at 12:6-14). As to Count One,
18 Plaintiff identifies “Corp. Seeley [], Deputy Balay [], Deputy Norie [], Deputy Torres
19 [], Deputy Warren []” and “Corp. Saunders []” as using “excessive force.” (ECF No.
20 55 at 3) For Count Two, Plaintiff states that the “County of San Diego employee’s [sic]
21 actions and omissions amounted to deliberate indifference to serious medical needs at
22 Central Jail in the scope of their employment.” Id. at 4. For Count Three, Plaintiff
23 states that he “was denied the rights to go to religious service, by employee’s [sic] at
24 San Diego County, Central Jail in the scope of there [sic] employment.” Id. at 5.
25 Neither Plaintiff’s SAC nor his opposition to Defendants’ Motion for Summary
26 Judgment identify a policy or practice within San Diego County responsible for the
27 conduct giving rise to his claims.
28

A plaintiff seeking to impose liability on a county under § 1983 must identify a
- 19 -

13cv1133-WQH-BGS

1 municipal “policy” or “custom” that caused his injury. Bryan County Commis v.
2 Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 694). Specifically, the
3 plaintiff must allege: (1) the plaintiff “possessed a constitutional right of which he was
4 deprived;” (2) the municipality had a policy; (3) the policy amounts to deliberate
5 indifference to the plaintiff’s constitutional right; and (4) the policy was the “moving
6 force” behind or cause of the constitutional violation. Dietrich v. John Ascuaga’s
7 Nugget, 548 F.3d 892, 900 (9th Cir. 2008) (citing Van Ort, 92 F.3d at 835).
8

Even if there is not an explicit policy, a plaintiff may establish municipal liability

9 upon a showing that there is a permanent and well-settled practice by the municipality
10 which gave rise to the alleged constitutional violation. See City of St. Louis v.
11 Praprotnik, 485 U.S. 112, 127 (1988); Hunter v. Cnty. of Sacramento, 652 F.3d 1225,
12 1232-33 (9th Cir. 2011). Allegations of random acts, or single instances of misconduct,
13 however, are insufficient to establish a municipal custom. See Navarro v. Block, 72
14 F.3d 712, 714.
15

In this case, no evidence in the record, nor any allegation in Plaintiff’s SAC,

16 suggest that Defendants’ actions were “caused by” any custom, policy or practice of the
17 County of San Diego. See Monell, 436 U.S. at 694; Brown, 520 U.S. at 405 (noting that
18 “[w]here a plaintiff claims that the municipality has not directly inflicted injury, but
19 nonetheless has caused an employee to do so, rigorous standards of culpability and
20 causation must be applied to ensure that the municipality is not held liable for the
21 actions of its employee”). Plaintiff specifically premises the gravamen of this action on
22 the acts of individual Sheriff Deputy’s application of force against him on a particular
23 occasion. A plaintiff cannot demonstrate the existence of a municipal policy or custom
24 based solely on a “single occurrence of [allegedly] unconstitutional action by a non25 policymaking employee.” McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000).
26 Because Plaintiff has not put forth any evidence that Defendants alleged actions were
27 the result of a custom or policy in San Diego County, the Court grants summary
28 judgment as to all claims against San Diego County.
III. Conclusion
- 20 -

13cv1133-WQH-BGS

1

IT IS HEREBY ORDERED that the Report and Recommendation (ECF NO. 93)

2 is adopted in part and not adopted in part. With respect to Plaintiff’s second and third
3 claims, and all claims against San Diego County, the Report and Recommendation is
4 adopted; otherwise the Report and Recommendation is not adopted. Defendants’
5 Motion for Summary Judgement (ECF No. 78) is granted in part and denied in part as
6 follows:
7

1) Defendants’ Motion for Summary Judgment for failure to exhaust

8

administrative remedies regarding Plaintiff’s Second and Third Claims is

9

granted.

10

2) Defendant’s Motion for Summary Judgment regarding all claims

11

against San Diego County is granted.

12

3) Defendants’ Motion for Summary Judgment regarding Plaintiff’s First

13

Claim of excessive force as to Defendants Seeley, Balay, Torres, Warren,

14

Norie, and Saunders is denied.

15

4) Defendants’ Motion for Summary Judgment regarding qualified

16

immunity for Plaintiff’s First Claim of excessive force as to Defendants

17

Seeley, Balay, Torres, Warren, Norie, and Saunders is denied.

18
19
20
21

DATED: January 19, 2016
WILLIAM Q. HAYES
United States District Judge

22
23
24
25
26
27
28
- 21 -

13cv1133-WQH-BGS