Ellis v. Brady et al

Filing 33

ORDER Requiring Supplemental Briefing Re Motion For Summary Judgment On Behalf Of Defendant Derrick Brady: Defendant is ordered to provide supplemental briefing on or before 11/1/2017. Plaintiff may file a supplemental opposition by 11/15/2017 and Defendant's reply, if any, is due by 11/22/2017. The Court then will take the matter under submission. Signed by Magistrate Judge Nita L. Stormes on 10/17/2017. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CLYDE REGINALD ELLIS, an individual, Plaintiff, 13 14 15 Case No.: 16cv1419 WQH (NLS) v. OFFICER BRADY; SAN DIEGO SHERIFF'S OFFICE, DOES 1-7, 16 ORDER REQUIRING SUPPLEMENTAL BRIEFING RE: MOTION FOR SUMMARY JUDGMENT ON BEHALF OF DEFENDANT DERRICK BRADY Defendants. 17 18 19 Plaintiff Clyde Reginald Ellis, a prisoner proceeding pro se and in forma pauperis, 20 filed this civil rights action alleging various claims stemming from an altercation with 21 Defendant on June 7, 2015. In his first claim under 42 U.S.C. § 1983, Plaintiff alleges 22 that Defendant used excessive force in violation of the Fourth Amendment. ECF No. 1 23 ¶¶23-35.1 Plaintiff was in custody at the time of the altercation, so the Fourth 24 Amendment would not apply. See Graham v. Connor, 490 U.S. 386, 388 (1989) 25 (explaining that the Fourth Amendment applies to claims that excessive force was used in 26 the course of an investigatory stop, an arrest, or any other “seizure” of the individual). 27 28 1 The remaining four claims that pertain to Defendant Derrick Brady arise under California state law. 1 16cv1419 WQH (NLS) 1 This alone does not warrant dismissal of the claim, because courts are directed to 2 construe pro se pleadings liberally. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (in the Ninth 4 Circuit, it has long been established that “‘where the petitioner is pro se, particularly in 5 civil rights cases, [courts should] construe the pleadings liberally and ... afford the 6 petitioner the benefit of any doubt’”). However, as the Court explained in its initial 7 screening order, it is not clear from Plaintiff’s complaint “whether Plaintiff was a pretrial 8 detainee or a convicted prisoner at the time” of the alleged incident. ECF No. 3 at 5-6. 9 On August 14, 2017, Defendant Brady filed a motion for summary judgment. ECF 10 No. 19. In this motion, Defendant never clarifies whether Plaintiff was a pretrial detainee 11 or a convicted prisoner. If Plaintiff was a pretrial detainee, his claim would be analyzed 12 under the Fourteenth Amendment’s Due Process Clause. Kingsley v. Hendrickson, __ 13 U.S. __, 135 S.Ct 2466, 2473 (2015) (quoting Graham, 490 U.S. at 395 n.10) (“the Due 14 Process Clause protects a pretrial detainee from the use of excessive force that amounts to 15 punishment”). Post-conviction, his claim would be considered under the Eighth 16 Amendment’s cruel and unusual punishment standard. See Hudson v. McMill, 503 U.S. 17 1, 6-7 (1992). Instead of confirming Plaintiff’s status through discovery and presenting 18 arguments under the appropriate Constitutional amendment, Defendant sets forth all three 19 legal standards and alternatively argues for summary judgment under the Fourth 20 Amendment, which does not apply, and the Eighth Amendment, which may or may not 21 apply. 22 In his recently filed opposition, Plaintiff states that before the incident, “Plaintiff 23 was sentenced by the court in his case to serve time in state prison.” ECF No. 32 at 11. 24 This suggests that Plaintiff was a convicted prisoner, but there is no other evidence before 25 this Court confirming that fact. 26 It is not this Court’s burden to make Defendant’s argument for him. Defendant’s 27 summary judgment motion failed to identify the critical fact of Plaintiff’s detainment 28 status. It appears Plaintiff now has provided that fact. However, before the Court can 2 16cv1419 WQH (NLS) 1 address whether Defendant Brady is entitled to qualified immunity and whether summary 2 judgment is appropriate, Defendant must present argument under the appropriate 3 Constitutional Amendment. Defendant, therefore, is ordered to provide supplemental 4 briefing on or before November 1, 2017. Plaintiff may file a supplemental opposition by 5 November 15, 2017 and Defendant’s reply, if any, is due by November 22, 2017. The 6 Court then will take the matter under submission pursuant to Civil Local Rule 7.1(d)(1). 7 8 IT IS SO ORDERED. Dated: October 17, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv1419 WQH (NLS)

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