Wilson v. Gardiner et al

Filing 32

REPORT AND RECOMMENDATION re 30 MOTION for Summary Judgment. Objections to R&R due by 2/19/2019. Replies due by 2/26/2019. Signed by Magistrate Judge Mitchell D. Dembin on 2/05/2019.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID WILSON,

Case No.: 17-cv-0469-JLS-MDD
Plaintiff,

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v.

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CORPORAL GARDINER, et al.,
Defendant.

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REPORT AND
RECOMMENDATION ON
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
[ECF No. 30]

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This Report and Recommendation is submitted to United States

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District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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For the reasons set forth herein, the Court RECOMMENDS
Defendant’s Motion for Summary Judgment be GRANTED.
I. PROCEDURAL HISTORY
David Wilson (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis, with a civil complaint filed pursuant to 42 U.S.C. § 1983.

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(ECF No. 1, 3). In his Complaint, Plaintiff set forth various claims against

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six individuals working at the San Diego Central Jail Facility (“Central Jail”)
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alleging that they violated his civil rights by: (1) retaliating against him in

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violation of the First and Eighth Amendment; (2) imposing cruel and unusual

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punishment against him in violation of the Eighth Amendment; (3) failing to

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provide Plaintiff his due process rights in violation of the Fourteenth

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Amendment; (4) intentionally inflicting emotional distress on him; and (5)

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negligently disregarding their duty owed to Plaintiff. (See Id.). Following a

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Motion to Dismiss, only Plaintiff’s Fourteenth Amendment claim against

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Deputy Francis Gardiner remains. (ECF No. 26).
On August 17, 2018, Defendant filed a motion for summary judgment.

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(ECF No. 30). Plaintiff was served with a Klingele/Rand notice and given

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until September 26, 2018, to file his opposition. (ECF No. 31). As of the date

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of this Report and Recommendation, Plaintiff has not filed a response.

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II. FACTUAL BACKGROUND

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Defendant has produced evidence of the following facts.1 Defendant

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Francis Gardiner (“Defendant”) was working as a Fifth Floor Security Deputy

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at Central Jail on April 5, 2016. (ECF No. 30-2 at ¶1, 2). That day,

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Defendant was distributing lunch meals to the inmates in Module 5B, which

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was on lockdown. (Id. at ¶4). Due to the lockdown, inmates were served in

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their cells through the food flaps in the cell doors. (Id.). With the help of an

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“inmate trustee,” Defendant was handing out boxed lunches including

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sandwich materials and fruit, as well as soup that was poured into small cups

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from a large container. (Id. at ¶5). The soup ran out before Defendant began

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lunch service on the second floor of Module 5B. (Id.).
Plaintiff was one of three inmates housed in cell 17. (Id. at ¶6). After

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These facts are undisputed because Plaintiff has not filed an opposition or
put forth any evidence disputing them.
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delivering lunches to cell 17, Defendant was moving to cell 15 when Plaintiff

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yelled out, calling Defendant lazy for not giving him any soup. (Id.).

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Defendant believed that other inmates could hear Plaintiff and noticed that

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they were becoming upset. Defendant believed that Plaintiff was beginning

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to incite the other inmates over the unavailability of soup. (Id. at 7).

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Defendant then returned to cell 17 to defuse tensions. (Id. at ¶8).

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Because of the cell door, Defendant was unable to communicate easily with

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Plaintiff and therefore Defendant called the tower and had the door to cell 17

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opened. (Id.). Defendant explained that the soup had run out and offered

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Plaintiff the opportunity to see for himself which Plaintiff declined. (Id. at

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¶9, 10). Plaintiff then yelled “Fuck you” at a volume that could be heard by

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everyone else in the Module. (Id. at ¶10).

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Module 5B is an incentive-based module used as a reward for good

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behavior and inmates who violate rules or regulations can be removed. (Id.

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at ¶11). Following Plaintiff’s outburst, Defendant made the decision to

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remove Plaintiff. (Id.). Defendant believed that Plaintiff had violated rules

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requiring inmates to treat staff members civilly and not threaten, assault, or

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attempt to intimidate any other inmate or staff; as well as the regulation

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prohibiting aggressive or boisterous activity. (Id.). Defendant ordered

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Plaintiff to exit the cell and go to the common area on the first floor, Plaintiff

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refused and moved further into the cell. (Id. at ¶12). Defendant repeated his

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order for plaintiff Plaintiff to go to the common area and again Plaintiff,

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standing very close to Defendant, yelled “fuck you.” (Id. at ¶13, 16).

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Defendant recognized Plaintiff’s agitation and combative language as “pre-

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assaultive indicators” and further believed that he was in a vulnerable

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position. (Id. at ¶14, 15). Defendant based his assessment of his position on

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(1) Defendant’s location near the second floor railing, given that he has
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previously seen inmates attempt to “leverage deputies over the railing to fall

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onto the hard concrete floor,” (2) Defendant’s inability to close the cell door on

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Plaintiff to prevent a physical altercation, and (3) Defendant being the only

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deputy in the module at the time of this interaction. (Id. at ¶15).

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Defendant then attempted to grab Plaintiff by his shirt to pull him from

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the cell in order to handcuff him and remove him from the module. (Id. at

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¶16). Plaintiff slapped at Defendants hands. (Id.). Plaintiff kept slapping at

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Defendant’s hands and at one point slapped Defendant’s face in an attempt to

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resist. (Id.). Defendant did not strike or punch Plaintiff, and limited his

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contact to grabbing, pushing, and pulling in an attempt to remove Plaintiff

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from the cell. (Id.)

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Defendant was able to eventually remove Plaintiff from the cell, locking

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the cell door behind them, and then ordered Plaintiff to face the wall to

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handcuff him. (Id. at 17). Plaintiff refused and “took a bladed stance,” which

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Defendant perceived as a fighting position. (Id. at ¶18). Defendant, using an

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open hand, pushed Plaintiff on the chest several times, to move Plaintiff

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toward the stairs “to prevent him from getting footing for a fighting stance.”

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(Id.). It was Defendant’s intention to render Plaintiff unable to charge at

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Defendant. (Id.).

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At this time, five other deputies rushed into the module, and Plaintiff

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became compliant. (Id. at ¶19). Defendant, with assistance, handcuffed

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Plaintiff. (Id.). Plaintiff was escorted down the stairs and out of Module 5B.

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Defendant never kicked at Plaintiff’s legs, ankles, or calves. (Id. at ¶20).

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Plaintiff’s pants sagged during this interaction and as a result by the time

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Plaintiff reached the bottom of the stairs, his pantlegs “had extended over his

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socks,” however Defendant did not intentionally force Plaintiff out of his

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pants while walking. (Id.).
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III. LEGAL STANDARD

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A. Summary Judgment

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Rule 56(c) of the Federal Rules of Civil Procedure authorizes the

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granting of summary judgment “if the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any,

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show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law.” The standard for

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granting a motion for summary judgment is essentially the same as for the

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granting of a directed verdict. Judgment must be entered, “if, under the

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governing law, there can be but one reasonable conclusion as to the verdict.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If reasonable

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minds could differ,” however, judgment should not be entered in favor of the

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moving party. Id. at 250-51.

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The parties bear the same substantive burden of proof as would apply

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at a trial on the merits, including plaintiff’s burden to establish any element

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essential to his case. Liberty Lobby, 477 U.S. at 252; Celotx v. Catrett, 477

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U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The

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moving party bears the initial burden of identifying the elements of the claim

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in the pleadings, or other evidence, which the moving party “believes

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demonstrates the absence of a genuine issue of material fact.” Celotex, 477

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U.S. at 323; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);

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Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “A material

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issue of fact is one that affects the outcome of the litigation and requires a

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trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seabord

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Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). More than a “metaphysical

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doubt” is required to establish a genuine issue of material fact. Matsushita

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Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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The burden then shifts to the non-moving party to establish, beyond the

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pleadings, that there is no genuine issue for trial. See Celotex, 477 U.S. at

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324. To successfully rebut a properly supported motion for summary

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judgment, the nonmoving party “must point to some facts in the record that

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demonstrate a genuine issue of material fact and, with all reasonable

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inferences made in the plaintiff[‘s] favor, could convince a reasonable jury to

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find for the plaintiff[].” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736,

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738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex, 477 U.S. at 323; Liberty

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Lobby, 477 U.S. at 249).

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While the district court is “not required to comb the record to find some

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reason to deny a motion for summary judgment,” Forsberg v. Pacific N.W.

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Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988), see also Nilsson v.

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Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may

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nevertheless exercise its discretion “in appropriate circumstances,” to

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consider materials in the record which are on file but not “specifically

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referred to.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,

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1031 (9th Cir. 2001). However, the court need not “examine the entire file for

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evidence establishing a genuine issue of fact, where the evidence is not set

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forth in the opposing papers with adequate references so that it could be

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conveniently found.” Id.

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In ruling on a motion for summary judgment, the court need not accept

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legal conclusions “cast in the form of factual allegations.” Western mining

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Council v. Watt, 643 F. 2d 618, 624 (9th Cir. 1981). “No valid interest is

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served by withholding summary judgment on a complaint that wraps

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nonactionable conduct in a jacket woven of legal conclusions and hyperbole.”

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Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989).

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Moreover, “[a] conclusory, self-serving affidavit, lacking detailed facts
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and any supporting evidence, is insufficient to create a genuine issue of

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material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171

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(9th Cir. 1997). Nevertheless, “the district court may not disregard a piece of

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evidence at the summary stage solely based on its self-serving nature.” Nigro

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v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir. 2015) (finding

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plaintiff’s “uncorroborated and self-serving” declaration sufficient to establish

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a genuine issue of material fact because the “testimony was based on

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personal knowledge, legally relevant, and internally consistent.”).
A district court may not grant a motion for summary judgment solely

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because the opposing party has failed to file an opposition. Cristobal v.

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Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994). A court may,

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nonetheless, “grant an unopposed motion for summary judgment if the

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movant’s papers are themselves sufficient to support the motion and do not

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on their face reveal a genuine issue of material fact[.]” Williams v. Santa

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Cruz Cnty. Sheriff’s Dep’t, 234 F. App’x 522, 523 (9th Cir. 2007) (citing Henry

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v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993)).
IV. DISCUSSION

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A. Fourteenth Amendment Excessive Force Claim

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Plaintiff claims Defendant exhibited unnecessary force and failed to

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provide “an environment free of malicious and sadistic conduct.” (ECF No. 1

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at 3). Defendant argues, however, that given the circumstances, his actions

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were reasonable and as a result summary judgment is proper. (ECF No. 31-1

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at 6).

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Because Plaintiff is a pretrial detainee alleging excessive force in

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violation of the Fourteenth Amendment, his claim arises under the Due

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Process Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson,

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135 S.Ct. 2466 (2015); see also Graham v. Connor, 490 U.S. 386, 395 n.10
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(1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)); Gibson v. County

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of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (“The Due Process clause

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protects pretrial detainees from the use of excessive force that amounts to

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punishment.”). In Kingsley, the Supreme Court held that a pretrial detainee

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bringing an excessive force claim “must show only that the force purposely or

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knowingly used against him was objectively unreasonable” rather than prove

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“a subjective standard that takes into account defendant’s state of mind.”

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Kingsley, 135 S.Ct. at 2472-73.

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“[O]bjective reasonableness turns on the facts and circumstances of

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each particular case. Id. at 2473 (internal quotation omitted). Objective

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reasonableness must be assessed from the perspective of a reasonable officer

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on the scene, including what the officer knew at the time, not with the 20/20

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vision of hindsight. Id. The court must also account for the legitimate

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interests that stem from the government’s need to manage the facility in

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which the individual is detained. Id. The following non-exclusive factors

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may bear on the reasonableness or unreasonableness of the force used:

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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.
Id. However, unlike a convicted prisoner proceeding under the Eighth

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Amendment, a pretrial detainee does not need to show that the force was

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applied maliciously and sadistically for the purpose of causing harm. Id. at

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2475-76.

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The only act at issue here against Defendant—that he physically

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removed Plaintiff from his cell after Plaintiff began challenging him over the

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availability of soup—may have been unkind or harsh, but is not sufficient to
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establish a constitutional violation. “Not every malevolent touch by a prison

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guard gives rise to a federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34,

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37 (2010) (internal citation and quotation marks omitted).

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Here, in arguing that the use of force was appropriate, Defendant notes

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that the Use of Force Guidelines allow hands-on-control as an appropriate

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response to verbal non-compliance and resistance and that Defendant’s use

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was a good faith effort to maintain and restore discipline. (ECF No. 30-1 at

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6). Further, Defendant contends that the force applied after Plaintiff’s verbal

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incitement and refusal to leave the cell would be considered “low level” and

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did not include fist strikes, OC spray, or striking weapons. (Id.). Plaintiff

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pleads no physical injury from Defendant’s attempt to push him toward the

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stairs, only claiming embarrassment from being escorted in his shirt and

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underwear as well as anxiety and distress stemming from later events that

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have been dismissed from this case. (Id. at 7).

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The signed declaration filed with Defendant’s motion indicates that

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Defendant’s use of force was appropriate given the circumstances. Plaintiff

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was not only engaging in behavior likely to incite other inmates in the

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Module, he also actively resisted Defendant’s efforts to de-escalate the

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situation. Additionally, Defendant used a minimal amount of force in an

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effort to ensure that Plaintiff did not charge at him after Plaintiff adopted

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what Defendant considered to be a fighting stance.

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Plaintiff has not supported his contention that Defendant’s force was

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unnecessary or that Defendant’s behavior was unreasonable. Further,

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Plaintiff has failed to meet his burden of coming forward with “specific facts

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showing there is a genuine issue for trial.” Matsushita Elec. Indus. Co., 475

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U.S. at 586-87.

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Accordingly, this Court RECOMMENDS that summary judgment of
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Plaintiff’s excessive force claim be GRANTED.

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B. Qualified immunity

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Defendant raises qualified immunity as an alternative basis for

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dismissal of Plaintiff’s claim. Defendant contends that he is entitled to

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qualified immunity because there is no clearly established authority that

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would find his conduct unconstitutional. (ECF No. 30-1 at 7-8).

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Qualified immunity shields government officials performing

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discretionary functions from liability for civil damages unless their conduct

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violates clearly established statutory or constitutional rights of which a

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reasonable person would have known. Anderson v. Creighton, 483 U.S. 635,

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640 (1987). “In determining whether an officer is entitled to qualified

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immunity, we consider (1) whether there has been a violation of a

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constitutional right; and (2) whether that right was clearly established at the

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time of the officer's alleged misconduct.” C.V. by & through Villegas v. City of

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Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal v. California, 746

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F.3d 1112, 1116 (9th Cir. 2014)). The Court may decide which of the two

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prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here,

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as discussed above, there is no constitutional violation. Accordingly, both

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Defendants are entitled to qualified immunity.

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Based on the lack of any evidence of a Fourteenth Amendment violation

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and Defendant’s entitlement to qualified immunity on this claim, the Court

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RECOMMENDS that the motion for summary judgment be GRANTED,

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and that this action be DISMISSED.

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V. CONCLUSION

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For the reasons outlined above, IT IS RECOMMENDED that the

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District Court issue an Order: (1) Approving and Adopting this Report and

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Recommendation; and (2) GRANTING Defendants’ motion for summary
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judgment.
IT IS HEREBY ORDERED that any written objections to this Report

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must be filed with the Court and served on all parties no later than

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February 19, 2019. The document should be captioned “Objections to

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Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objection shall be

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filed with the Court and served on all parties no later than February 26,

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2019. The parties are advised that the failure to file objections within the

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specified time may waive the right to raise those objections on appeal of the

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Court’s order. See Turner v. Duncan, 158 F. 3d 449, 455 (9th Cir. 1998).
IT IS SO ORDERED.
Dated: February 5, 2019

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