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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID WILSON, Case No.: 17-cv-0469-JLS-MDD Plaintiff, 12 13 v. 14 CORPORAL GARDINER, et al., Defendant. 15 REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF No. 30] 16 17 This Report and Recommendation is submitted to United States 18 District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and 19 Local Civil Rule 72.1(c) of the United States District Court for the Southern 20 District of California. 21 22 23 24 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 25 forma pauperis, with a civil complaint filed pursuant to 42 U.S.C. § 1983. 26 (ECF No. 1, 3). In his Complaint, Plaintiff set forth various claims against 27 six individuals working at the San Diego Central Jail Facility (“Central Jail”) 1 17-cv-0469-JLS-MDD 1 alleging that they violated his civil rights by: (1) retaliating against him in 2 violation of the First and Eighth Amendment; (2) imposing cruel and unusual 3 punishment against him in violation of the Eighth Amendment; (3) failing to 4 provide Plaintiff his due process rights in violation of the Fourteenth 5 Amendment; (4) intentionally inflicting emotional distress on him; and (5) 6 negligently disregarding their duty owed to Plaintiff. (See Id.). Following a 7 Motion to Dismiss, only Plaintiff’s Fourteenth Amendment claim against 8 Deputy Francis Gardiner remains. (ECF No. 26). On August 17, 2018, Defendant filed a motion for summary judgment. 9 10 (ECF No. 30). Plaintiff was served with a Klingele/Rand notice and given 11 until September 26, 2018, to file his opposition. (ECF No. 31). As of the date 12 of this Report and Recommendation, Plaintiff has not filed a response. 13 II. FACTUAL BACKGROUND 14 Defendant has produced evidence of the following facts.1 Defendant 15 Francis Gardiner (“Defendant”) was working as a Fifth Floor Security Deputy 16 at Central Jail on April 5, 2016. (ECF No. 30-2 at ¶1, 2). That day, 17 Defendant was distributing lunch meals to the inmates in Module 5B, which 18 was on lockdown. (Id. at ¶4). Due to the lockdown, inmates were served in 19 their cells through the food flaps in the cell doors. (Id.). With the help of an 20 “inmate trustee,” Defendant was handing out boxed lunches including 21 sandwich materials and fruit, as well as soup that was poured into small cups 22 from a large container. (Id. at ¶5). The soup ran out before Defendant began 23 lunch service on the second floor of Module 5B. (Id.). Plaintiff was one of three inmates housed in cell 17. (Id. at ¶6). After 24 25 26 27 These facts are undisputed because Plaintiff has not filed an opposition or put forth any evidence disputing them. 1 2 17-cv-0469-JLS-MDD 1 delivering lunches to cell 17, Defendant was moving to cell 15 when Plaintiff 2 yelled out, calling Defendant lazy for not giving him any soup. (Id.). 3 Defendant believed that other inmates could hear Plaintiff and noticed that 4 they were becoming upset. Defendant believed that Plaintiff was beginning 5 to incite the other inmates over the unavailability of soup. (Id. at 7). 6 Defendant then returned to cell 17 to defuse tensions. (Id. at ¶8). 7 Because of the cell door, Defendant was unable to communicate easily with 8 Plaintiff and therefore Defendant called the tower and had the door to cell 17 9 opened. (Id.). Defendant explained that the soup had run out and offered 10 Plaintiff the opportunity to see for himself which Plaintiff declined. (Id. at 11 ¶9, 10). Plaintiff then yelled “Fuck you” at a volume that could be heard by 12 everyone else in the Module. (Id. at ¶10). 13 Module 5B is an incentive-based module used as a reward for good 14 behavior and inmates who violate rules or regulations can be removed. (Id. 15 at ¶11). Following Plaintiff’s outburst, Defendant made the decision to 16 remove Plaintiff. (Id.). Defendant believed that Plaintiff had violated rules 17 requiring inmates to treat staff members civilly and not threaten, assault, or 18 attempt to intimidate any other inmate or staff; as well as the regulation 19 prohibiting aggressive or boisterous activity. (Id.). Defendant ordered 20 Plaintiff to exit the cell and go to the common area on the first floor, Plaintiff 21 refused and moved further into the cell. (Id. at ¶12). Defendant repeated his 22 order for plaintiff Plaintiff to go to the common area and again Plaintiff, 23 standing very close to Defendant, yelled “fuck you.” (Id. at ¶13, 16). 24 Defendant recognized Plaintiff’s agitation and combative language as “pre- 25 assaultive indicators” and further believed that he was in a vulnerable 26 position. (Id. at ¶14, 15). Defendant based his assessment of his position on 27 (1) Defendant’s location near the second floor railing, given that he has 3 17-cv-0469-JLS-MDD 1 previously seen inmates attempt to “leverage deputies over the railing to fall 2 onto the hard concrete floor,” (2) Defendant’s inability to close the cell door on 3 Plaintiff to prevent a physical altercation, and (3) Defendant being the only 4 deputy in the module at the time of this interaction. (Id. at ¶15). 5 Defendant then attempted to grab Plaintiff by his shirt to pull him from 6 the cell in order to handcuff him and remove him from the module. (Id. at 7 ¶16). Plaintiff slapped at Defendants hands. (Id.). Plaintiff kept slapping at 8 Defendant’s hands and at one point slapped Defendant’s face in an attempt to 9 resist. (Id.). Defendant did not strike or punch Plaintiff, and limited his 10 contact to grabbing, pushing, and pulling in an attempt to remove Plaintiff 11 from the cell. (Id.) 12 Defendant was able to eventually remove Plaintiff from the cell, locking 13 the cell door behind them, and then ordered Plaintiff to face the wall to 14 handcuff him. (Id. at 17). Plaintiff refused and “took a bladed stance,” which 15 Defendant perceived as a fighting position. (Id. at ¶18). Defendant, using an 16 open hand, pushed Plaintiff on the chest several times, to move Plaintiff 17 toward the stairs “to prevent him from getting footing for a fighting stance.” 18 (Id.). It was Defendant’s intention to render Plaintiff unable to charge at 19 Defendant. (Id.). 20 At this time, five other deputies rushed into the module, and Plaintiff 21 became compliant. (Id. at ¶19). Defendant, with assistance, handcuffed 22 Plaintiff. (Id.). Plaintiff was escorted down the stairs and out of Module 5B. 23 Defendant never kicked at Plaintiff’s legs, ankles, or calves. (Id. at ¶20). 24 Plaintiff’s pants sagged during this interaction and as a result by the time 25 Plaintiff reached the bottom of the stairs, his pantlegs “had extended over his 26 socks,” however Defendant did not intentionally force Plaintiff out of his 27 pants while walking. (Id.). 4 17-cv-0469-JLS-MDD 1 III. LEGAL STANDARD 2 A. Summary Judgment 3 Rule 56(c) of the Federal Rules of Civil Procedure authorizes the 4 granting of summary judgment “if the pleadings, depositions, answers to 5 interrogatories, and admissions on file, together with the affidavits, if any, 6 show that there is no genuine issue as to any material fact and that the 7 moving party is entitled to judgment as a matter of law.” The standard for 8 granting a motion for summary judgment is essentially the same as for the 9 granting of a directed verdict. Judgment must be entered, “if, under the 10 governing law, there can be but one reasonable conclusion as to the verdict.” 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If reasonable 12 minds could differ,” however, judgment should not be entered in favor of the 13 moving party. Id. at 250-51. 14 The parties bear the same substantive burden of proof as would apply 15 at a trial on the merits, including plaintiff’s burden to establish any element 16 essential to his case. Liberty Lobby, 477 U.S. at 252; Celotx v. Catrett, 477 17 U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The 18 moving party bears the initial burden of identifying the elements of the claim 19 in the pleadings, or other evidence, which the moving party “believes 20 demonstrates the absence of a genuine issue of material fact.” Celotex, 477 21 U.S. at 323; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); 22 Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “A material 23 issue of fact is one that affects the outcome of the litigation and requires a 24 trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seabord 25 Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). More than a “metaphysical 26 doubt” is required to establish a genuine issue of material fact. Matsushita 27 Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 5 17-cv-0469-JLS-MDD 1 The burden then shifts to the non-moving party to establish, beyond the 2 pleadings, that there is no genuine issue for trial. See Celotex, 477 U.S. at 3 324. To successfully rebut a properly supported motion for summary 4 judgment, the nonmoving party “must point to some facts in the record that 5 demonstrate a genuine issue of material fact and, with all reasonable 6 inferences made in the plaintiff[‘s] favor, could convince a reasonable jury to 7 find for the plaintiff[].” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 8 738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex, 477 U.S. at 323; Liberty 9 Lobby, 477 U.S. at 249). 10 While the district court is “not required to comb the record to find some 11 reason to deny a motion for summary judgment,” Forsberg v. Pacific N.W. 12 Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988), see also Nilsson v. 13 Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may 14 nevertheless exercise its discretion “in appropriate circumstances,” to 15 consider materials in the record which are on file but not “specifically 16 referred to.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 17 1031 (9th Cir. 2001). However, the court need not “examine the entire file for 18 evidence establishing a genuine issue of fact, where the evidence is not set 19 forth in the opposing papers with adequate references so that it could be 20 conveniently found.” Id. 21 In ruling on a motion for summary judgment, the court need not accept 22 legal conclusions “cast in the form of factual allegations.” Western mining 23 Council v. Watt, 643 F. 2d 618, 624 (9th Cir. 1981). “No valid interest is 24 served by withholding summary judgment on a complaint that wraps 25 nonactionable conduct in a jacket woven of legal conclusions and hyperbole.” 26 Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989). 27 Moreover, “[a] conclusory, self-serving affidavit, lacking detailed facts 6 17-cv-0469-JLS-MDD 1 and any supporting evidence, is insufficient to create a genuine issue of 2 material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 3 (9th Cir. 1997). Nevertheless, “the district court may not disregard a piece of 4 evidence at the summary stage solely based on its self-serving nature.” Nigro 5 v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir. 2015) (finding 6 plaintiff’s “uncorroborated and self-serving” declaration sufficient to establish 7 a genuine issue of material fact because the “testimony was based on 8 personal knowledge, legally relevant, and internally consistent.”). A district court may not grant a motion for summary judgment solely 9 10 because the opposing party has failed to file an opposition. Cristobal v. 11 Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994). A court may, 12 nonetheless, “grant an unopposed motion for summary judgment if the 13 movant’s papers are themselves sufficient to support the motion and do not 14 on their face reveal a genuine issue of material fact[.]” Williams v. Santa 15 Cruz Cnty. Sheriff’s Dep’t, 234 F. App’x 522, 523 (9th Cir. 2007) (citing Henry 16 v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993)). IV. DISCUSSION 17 18 A. Fourteenth Amendment Excessive Force Claim 19 Plaintiff claims Defendant exhibited unnecessary force and failed to 20 provide “an environment free of malicious and sadistic conduct.” (ECF No. 1 21 at 3). Defendant argues, however, that given the circumstances, his actions 22 were reasonable and as a result summary judgment is proper. (ECF No. 31-1 23 at 6). 24 Because Plaintiff is a pretrial detainee alleging excessive force in 25 violation of the Fourteenth Amendment, his claim arises under the Due 26 Process Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson, 27 135 S.Ct. 2466 (2015); see also Graham v. Connor, 490 U.S. 386, 395 n.10 7 17-cv-0469-JLS-MDD 1 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)); Gibson v. County 2 of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (“The Due Process clause 3 protects pretrial detainees from the use of excessive force that amounts to 4 punishment.”). In Kingsley, the Supreme Court held that a pretrial detainee 5 bringing an excessive force claim “must show only that the force purposely or 6 knowingly used against him was objectively unreasonable” rather than prove 7 “a subjective standard that takes into account defendant’s state of mind.” 8 Kingsley, 135 S.Ct. at 2472-73. 9 “[O]bjective reasonableness turns on the facts and circumstances of 10 each particular case. Id. at 2473 (internal quotation omitted). Objective 11 reasonableness must be assessed from the perspective of a reasonable officer 12 on the scene, including what the officer knew at the time, not with the 20/20 13 vision of hindsight. Id. The court must also account for the legitimate 14 interests that stem from the government’s need to manage the facility in 15 which the individual is detained. Id. The following non-exclusive factors 16 may bear on the reasonableness or unreasonableness of the force used: 17 21 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 22 Amendment, a pretrial detainee does not need to show that the force was 23 applied maliciously and sadistically for the purpose of causing harm. Id. at 24 2475-76. 18 19 20 25 The only act at issue here against Defendant—that he physically 26 removed Plaintiff from his cell after Plaintiff began challenging him over the 27 availability of soup—may have been unkind or harsh, but is not sufficient to 8 17-cv-0469-JLS-MDD 1 establish a constitutional violation. “Not every malevolent touch by a prison 2 guard gives rise to a federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 3 37 (2010) (internal citation and quotation marks omitted). 4 Here, in arguing that the use of force was appropriate, Defendant notes 5 that the Use of Force Guidelines allow hands-on-control as an appropriate 6 response to verbal non-compliance and resistance and that Defendant’s use 7 was a good faith effort to maintain and restore discipline. (ECF No. 30-1 at 8 6). Further, Defendant contends that the force applied after Plaintiff’s verbal 9 incitement and refusal to leave the cell would be considered “low level” and 10 did not include fist strikes, OC spray, or striking weapons. (Id.). Plaintiff 11 pleads no physical injury from Defendant’s attempt to push him toward the 12 stairs, only claiming embarrassment from being escorted in his shirt and 13 underwear as well as anxiety and distress stemming from later events that 14 have been dismissed from this case. (Id. at 7). 15 The signed declaration filed with Defendant’s motion indicates that 16 Defendant’s use of force was appropriate given the circumstances. Plaintiff 17 was not only engaging in behavior likely to incite other inmates in the 18 Module, he also actively resisted Defendant’s efforts to de-escalate the 19 situation. Additionally, Defendant used a minimal amount of force in an 20 effort to ensure that Plaintiff did not charge at him after Plaintiff adopted 21 what Defendant considered to be a fighting stance. 22 Plaintiff has not supported his contention that Defendant’s force was 23 unnecessary or that Defendant’s behavior was unreasonable. Further, 24 Plaintiff has failed to meet his burden of coming forward with “specific facts 25 showing there is a genuine issue for trial.” Matsushita Elec. Indus. Co., 475 26 U.S. at 586-87. 27 Accordingly, this Court RECOMMENDS that summary judgment of 9 17-cv-0469-JLS-MDD 1 Plaintiff’s excessive force claim be GRANTED. 2 B. Qualified immunity 3 Defendant raises qualified immunity as an alternative basis for 4 dismissal of Plaintiff’s claim. Defendant contends that he is entitled to 5 qualified immunity because there is no clearly established authority that 6 would find his conduct unconstitutional. (ECF No. 30-1 at 7-8). 7 Qualified immunity shields government officials performing 8 discretionary functions from liability for civil damages unless their conduct 9 violates clearly established statutory or constitutional rights of which a 10 reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 11 640 (1987). “In determining whether an officer is entitled to qualified 12 immunity, we consider (1) whether there has been a violation of a 13 constitutional right; and (2) whether that right was clearly established at the 14 time of the officer's alleged misconduct.” C.V. by & through Villegas v. City of 15 Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal v. California, 746 16 F.3d 1112, 1116 (9th Cir. 2014)). The Court may decide which of the two 17 prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, 18 as discussed above, there is no constitutional violation. Accordingly, both 19 Defendants are entitled to qualified immunity. 20 Based on the lack of any evidence of a Fourteenth Amendment violation 21 and Defendant’s entitlement to qualified immunity on this claim, the Court 22 RECOMMENDS that the motion for summary judgment be GRANTED, 23 and that this action be DISMISSED. 24 V. CONCLUSION 25 For the reasons outlined above, IT IS RECOMMENDED that the 26 District Court issue an Order: (1) Approving and Adopting this Report and 27 Recommendation; and (2) GRANTING Defendants’ motion for summary 10 17-cv-0469-JLS-MDD 1 2 judgment. IT IS HEREBY ORDERED that any written objections to this Report 3 must be filed with the Court and served on all parties no later than 4 February 19, 2019. The document should be captioned “Objections to 5 Report and Recommendation.” 6 IT IS FURTHER ORDERED that any reply to the objection shall be 7 filed with the Court and served on all parties no later than February 26, 8 2019. The parties are advised that the failure to file objections within the 9 specified time may waive the right to raise those objections on appeal of the 10 11 12 Court’s order. See Turner v. Duncan, 158 F. 3d 449, 455 (9th Cir. 1998). IT IS SO ORDERED. Dated: February 5, 2019 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11 17-cv-0469-JLS-MDD

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