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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLYDE REGINALD ELLIS, an
individual,
Plaintiff,

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Case No.: 16cv1419 WQH (NLS)

v.
OFFICER BRADY; SAN DIEGO
SHERIFF'S OFFICE, DOES 1-7,

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ORDER REQUIRING
SUPPLEMENTAL BRIEFING RE:
MOTION FOR SUMMARY
JUDGMENT ON BEHALF OF
DEFENDANT DERRICK BRADY

Defendants.

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Plaintiff Clyde Reginald Ellis, a prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action alleging various claims stemming from an altercation with

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Defendant on June 7, 2015. In his first claim under 42 U.S.C. § 1983, Plaintiff alleges

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that Defendant used excessive force in violation of the Fourth Amendment. ECF No. 1

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¶¶23-35.1 Plaintiff was in custody at the time of the altercation, so the Fourth

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Amendment would not apply. See Graham v. Connor, 490 U.S. 386, 388 (1989)

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(explaining that the Fourth Amendment applies to claims that excessive force was used in

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the course of an investigatory stop, an arrest, or any other “seizure” of the individual).

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The remaining four claims that pertain to Defendant Derrick Brady arise under California state law.
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This alone does not warrant dismissal of the claim, because courts are directed to

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construe pro se pleadings liberally. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (in the Ninth

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Circuit, it has long been established that “‘where the petitioner is pro se, particularly in

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civil rights cases, [courts should] construe the pleadings liberally and ... afford the

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petitioner the benefit of any doubt’”). However, as the Court explained in its initial

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screening order, it is not clear from Plaintiff’s complaint “whether Plaintiff was a pretrial

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detainee or a convicted prisoner at the time” of the alleged incident. ECF No. 3 at 5-6.

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On August 14, 2017, Defendant Brady filed a motion for summary judgment. ECF

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No. 19. In this motion, Defendant never clarifies whether Plaintiff was a pretrial detainee

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or a convicted prisoner. If Plaintiff was a pretrial detainee, his claim would be analyzed

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under the Fourteenth Amendment’s Due Process Clause. Kingsley v. Hendrickson, __

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U.S. __, 135 S.Ct 2466, 2473 (2015) (quoting Graham, 490 U.S. at 395 n.10) (“the Due

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Process Clause protects a pretrial detainee from the use of excessive force that amounts to

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punishment”). Post-conviction, his claim would be considered under the Eighth

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Amendment’s cruel and unusual punishment standard. See Hudson v. McMill, 503 U.S.

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1, 6-7 (1992). Instead of confirming Plaintiff’s status through discovery and presenting

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arguments under the appropriate Constitutional amendment, Defendant sets forth all three

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legal standards and alternatively argues for summary judgment under the Fourth

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Amendment, which does not apply, and the Eighth Amendment, which may or may not

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apply.

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In his recently filed opposition, Plaintiff states that before the incident, “Plaintiff

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was sentenced by the court in his case to serve time in state prison.” ECF No. 32 at 11.

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This suggests that Plaintiff was a convicted prisoner, but there is no other evidence before

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this Court confirming that fact.

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It is not this Court’s burden to make Defendant’s argument for him. Defendant’s

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summary judgment motion failed to identify the critical fact of Plaintiff’s detainment

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status. It appears Plaintiff now has provided that fact. However, before the Court can
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address whether Defendant Brady is entitled to qualified immunity and whether summary

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judgment is appropriate, Defendant must present argument under the appropriate

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Constitutional Amendment. Defendant, therefore, is ordered to provide supplemental

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briefing on or before November 1, 2017. Plaintiff may file a supplemental opposition by

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November 15, 2017 and Defendant’s reply, if any, is due by November 22, 2017. The

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Court then will take the matter under submission pursuant to Civil Local Rule 7.1(d)(1).

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IT IS SO ORDERED.
Dated: October 17, 2017

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