Starkey v. Hernandez et al

Filing 47

ORDER granting in part and denying in part 38 Defendant's Motion for Summary Judgment. Signed by Judge Janis L. Sammartino on 4/24/2019. (All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ADAM MICHAEL STARKEY,
CDCR #AP-1831,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

13
vs.

14
15

Case No.: 3:17-CV-1158 JLS (KSC)

EDWARD HERNANDEZ,
Defendant.

16

(ECF No. 38)

17
18

Presently before the Court is Defendant Edward Hernandez’s Motion for Summary

19

Judgment (“MSJ,” ECF No. 38). Also before the Court is Plaintiff Adam Michael

20

Starkey’s Opposition to the Motion (“Opp’n,” ECF No. 41). Having considered the record

21

evidence, the parties’ arguments, and the law, the Court GRANTS IN PART AND

22

DENIES IN PART Defendant’s Motion.

23

BACKGROUND

24

Plaintiff Adam Michael Starkey, a prisoner currently incarcerated at Centinela State

25

Prison (“CEN”) located in Imperial, California, is proceeding pro se and in forma pauperis

26

(“IFP”) in this civil action pursuant to 42 U.S.C. § 1983.

27

///

28

///
1
3:17-CV-1158 JLS (KSC)

1

I.

Factual Background
Plaintiff’s Claims1

2

A.

3

On June 2, 2016, Plaintiff filed an administrative grievance “against CC I Edward

4

Hernandez.” ECF No. 1 (“Compl.”) at 2. Plaintiff alleged that Hernandez verbally had

5

threatened him “with physical assault several times previously.” Id. On May 17, 2016,

6

Plaintiff “voiced [his] concern” for his safety to the Chairperson of the Classification

7

Committee. Id. at 3. At this classification hearing, Plaintiff was “told to file an inmate

8

appeal,” which Plaintiff did on June 2, 2016, as an “attempt to resolve [his] safety concerns

9

via the Classification Committee’s instructions.” Id.

10

On June 14, 2016, twelve days after Plaintiff filed his administrative grievance,

11

Defendant ordered Plaintiff out of his cell and brought to Defendant’s office.

12

Defendant informed Plaintiff that he was “going to interview” Plaintiff regarding the

13

concerns he had raised in his administrative grievance. Id. Plaintiff alleges Defendant

14

said, referring to Plaintiff’s grievance, “what the [expletive] is this?” Id. Plaintiff claims

15

that Defendant threatened him to “drop the complaint.” Id. Plaintiff refused and told

16

Defendant that he was “not going to speak to him any longer” and that Defendant should

17

give Plaintiff’s grievance to his “superior officer as is proper procedure.” Id.

Id.

18

Plaintiff alleges Defendant “raised his voice and threatened” him again, stating that

19

Plaintiff “was going to sign-off and drop the complaint ‘or else.’” Id. Plaintiff again

20

refused and “attempted to walk out of the office.” Id. at 4. Plaintiff claims Defendant then

21

“leaped on [Plaintiff’s] backside[,] placing [him] in a choke hold from behind.” Id.

22

Plaintiff further alleges Defendant used “his body weight to tackle [Plaintiff], twisting and

23

damaging [his] medial collateral ligament (M.C.L.) in [his] right knee.” Id.

24
25
26
27
28

Plaintiff’s Complaint contains factual allegations within Plaintiff’s personal knowledge that are verified
under penalty of perjury. See ECF No. 1 at 7; Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995)
(holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C.
§ 1746 may be used as an opposing affidavit under Federal Rule of Civil Procedure 56.); accord Norwood
v. Woodford, 661 F. Supp. 2d 1148, 1151 (S.D. Cal. 2009).
2
1

3:17-CV-1158 JLS (KSC)

1

Plaintiff was “placed in handcuffs when other officers responded and taken to a small

2

holding cage.” Id. Plaintiff informed “medical staff that [Defendant] had attacked” him

3

and his “right knee was in severe pain.” Id. Plaintiff was then “re-housed in a different

4

prison facility unit without seeing a doctor.” Id.
Defendant’s Claims

5

B.

6

Defendant is a Correctional Counselor I and was working at CEN on June 14, 2016.

7

See Declaration of Defendant E. Hernandez (“Hernandez Decl.”) ¶ 2, ECF No. 38-5. On

8

that day, Defendant was “asked by the prison’s appeals coordinator’s office to conduct a

9

First Level interview” with Plaintiff “regarding an inmate appeal [Plaintiff] had filed.” Id.

10

This interview took place in the Correctional Counselor’s office. Id. ¶ 3. Plaintiff was

11

“brought into the office and sat in a chair directly in front of [Defendant], on the other side

12

of the desk.” Id.

13

Defendant claims that Plaintiff “became angry, abruptly stood up, and walked over

14

to the side of [Defendant’s] desk and began raising his voice.” Id. Plaintiff was “only a

15

couple feet away” from Defendant. Id. Defendant contends Plaintiff was “blocking [his]

16

only avenue of exiting the office, and the desk was no longer separating” Defendant and

17

Plaintiff. Id.

18

Defendant claims that he became concerned for his personal safety because of

19

Plaintiff’s “aggressive, hostile, and escalating behavior” within the “close confines of the

20

office.” Id. ¶ 4. Defendant contends that he was “concerned for his safety because of the

21

substantial difference in our physical make up.” Id. Defendant “repeatedly ordered

22

[Plaintiff] to sit back in the chair or leave the office.” Id. Defendant alleges that Plaintiff

23

ignored his orders and “continued with his aggressive behavior.” Id. Defendant “stood up

24

and ordered [Plaintiff] to leave the office immediately.” Id. Defendant claims Plaintiff

25

ignored his orders again and took another step toward him. Id.

26

Defendant alleges that his concern for his personal safety increased as Plaintiff was

27

“continuing to act hostile,” would not obey his orders, and “advanced closer” to him. Id.

28

¶ 5. Defendant “immediately ordered [Plaintiff] in a commanding voice to ‘Get down! Get
3
3:17-CV-1158 JLS (KSC)

1

down!’” Id. Plaintiff ignored Defendant’s orders. Id. As a result, Defendant “made the

2

split-second decision to use both [his] hands to push [Plaintiff] in his upper torso area to

3

try and move him out of the office, through the doorway, to create some distance between”

4

him and Plaintiff. Id. Defendant claims he was “able to get [Plaintiff] just out of the office

5

doorway” but Plaintiff was “still blocking [his] ability to get out of the office.” Id.

6

Defendant once again ordered Plaintiff to “Get down! Get down!” Id. ¶ 6. Plaintiff,

7

however, continue to ignore Defendant’s orders. Id. Defendant alleges he “believed that

8

additional force was necessary to gain [Plaintiff’s] compliance” with his orders and to

9

“prevent the situation escalating any further.” Id. Defendant “wrapped both of [his] arms

10

around [Plaintiff’s] upper torso and turned [his] body away from the office, in an attempt

11

[to] redirect the incident away from the close confines of the office, and to get [Plaintiff]

12

off balance and onto the ground.” Id. Defendant claims Plaintiff “resisted [his] effort to

13

take him to the ground by using his body weight to try and pull away from [him].” Id.

14

Defendant “transitioned [his] upper body to over the top of [Plaintiff’s] upper torso and

15

back and utilized [his] body weight to force him the rest of the way to the ground.” Id.

16

Plaintiff “landed on his stomach” with Defendant “on the top of his upper back and right

17

shoulder.” Id. Defendant’s “left arm was under [Plaintiff’s] right arm, [Defendant’s] right

18

arm was over [Plaintiff’s] left shoulder, and [Plaintiff’s] hands were interlocked underneath

19

him around his chest.” Id. Correctional Officers Macias and Espinoza arrived and “placed

20

[Plaintiff] in handcuffs.” Id. Defendant claims “it was only then that [Plaintiff] stopped

21

resisting” him. Id.

22

Plaintiff “was then escorted to a holding cell in the Facility C Program Office” where

23

he was “assessed by Nurse J. Coronado.” Id. ¶ 8. Nurse Coronado prepared a “Medical

24

Report of Injury or Unusual Occurrence” that, according to Defendant, indicates that the

25

“described use of force shows only minor injuries that are consistent with the force

26

[Defendant] used on [Plaintiff].” Id. ¶ 8, Ex. B.

27

Correctional Sergeant Gomez then informed Plaintiff “that he would be transferred

28

to Facility B, and that he would receive a 115 Rules Violation Report.” Id. ¶ 9. Defendant
4
3:17-CV-1158 JLS (KSC)

1

“filed a 115 Serious Rules Violation Report (RVR)” against Plaintiff for “engaging in

2

behavior [that] could lead to violence.” Id. ¶ 10; see also id., Ex. C.

3

A hearing on Plaintiff’s RVR was “held on August 3, 2016.” Id. ¶ 11. Plaintiff was

4

“found guilty of the charged” offense and assessed a loss of thirty days of good-time

5

credits, ten days confinement to quarters, and sixty days loss of yard recreation privileges.

6

Id. “Upon review, this 115 RVR was re-heard by Senior Hearing Officer (SHO) Lieutenant

7

J. Coronado on February 28, 2017.” Id. ¶ 13. This rehearing was due to the previous

8

hearing officer failing to “document the reason he denied [Plaintiff’s] request to submit a

9

written statement.” Id.; see also id., Ex. D. Following the rehearing, Plaintiff was “again

10

found guilty of behavior [that] could lead to violence and assessed the thirty-day loss of

11

good-time credit.” Id.

12

II.

Procedural History

13

Plaintiff filed his Complaint on June 8, 2017. See generally Compl. On August 1,

14

2017, the Court granted Plaintiff leave to proceed in forma pauperis and screened

15

Plaintiff’s Complaint before service. ECF No. 9. The Court sua sponte dismissed without

16

prejudice Defendants California Department of Corrections and Rehabilitation (“CDCR”),

17

and CEN, see ECF No. 4 at 6–7, but found Plaintiff’s excessive force and retaliation

18

allegations against Defendant Hernandez sufficient to state plausible claims. Id. at 5–6.

19

Defendant filed the instant Motion for Summary Judgment on November 9, 2018.

20

ECF No. 84. Plaintiff filed his Opposition to Defendant’s Motion, ECF No. 41, and, after

21

Defendant did not file a reply, the Court took the matter under submission without oral

22

argument. ECF No. 44.

23

LEGAL STANDARD

24

Under Federal Rule of Civil Procedure 56(a), a party may move for summary

25

judgment as to a claim or defense or part of a claim or defense. Summary judgment is

26

appropriate where the Court is satisfied that there is “no genuine dispute as to any material

27

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

28

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect
5
3:17-CV-1158 JLS (KSC)

1

the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

2

genuine dispute of material fact exists only if “the evidence is such that a reasonable jury

3

could return a verdict for the nonmoving party.” Id. When the Court considers the

4

evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and

5

all justifiable inferences are to be drawn in his favor.” Id. at 255.

6

The initial burden of establishing the absence of a genuine issue of material fact falls

7

on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden

8

by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and

9

admissions on file, together with the affidavits, if any,’” that show an absence of dispute

10

regarding a material fact. Id. When a party seeks summary judgment as to an element for

11

which it bears the burden of proof, “it must come forward with evidence which would

12

entitle it to a directed verdict if the evidence went uncontroverted at trial.” See C.A.R.

13

Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting

14

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).

15

Once the moving party satisfies this initial burden, the nonmoving party must

16

identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S.

17

at 324. This requires “more than simply show[ing] that there is some metaphysical doubt

18

as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

19

586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own

20

affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’

21

designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for

22

the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. The

23

non-moving party cannot oppose a properly supported summary judgment motion by

24

“rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256.

25

Courts liberally construe filings and motions of pro se inmates and avoid applying

26

summary judgment rules strictly to pro se inmates. See Thomas v. Ponder, 611 F.3d 1144,

27

1150 (9th Cir. 2010) (citing Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). Further,

28

courts will consider both verified pleadings and verified motions, “where such contentions
6
3:17-CV-1158 JLS (KSC)

1

are based on personal knowledge and set forth facts that would be admissible in evidence,

2

and where [the inmate] attested under penalty of perjury that the contents of the motions

3

or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004)

4

(citing McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987); Johnson v. Meltzer, 134

5

F.3d 1393, 1399–400 (9th Cir. 1998).

6

ANALYSIS

7

Defendant Hernandez seeks summary judgment on the grounds that: (1) he did not

8

violate Plaintiff’s Eighth Amendment right to be free from excessive force; (2) he did not

9

retaliate against Plaintiff in violation of his First Amendment rights; (3) Plaintiff cannot

10

bring both an Eighth and Fourteenth Amendment claim based on the same set of facts;

11

(4) Plaintiff’s Eighth Amendment claim is barred by Heck v. Humphrey, 512 U.S. 477

12

(1994); and (5) Hernandez is entitled to qualified immunity. See MSJ at 6.

13

I.

Eighth Amendment Excessive Force Claims

14

The Eighth Amendment protects prisoners from the infliction of cruel and unusual

15

punishment. U.S. Const. amend. VIII. An Eighth Amendment violation occurs only when

16

an inmate is subjected to the “unnecessary and wanton infliction of pain.” Whitley v.

17

Albers, 475 U.S. 312, 319 (1986); see also Jeffers v. Gomez, 267 F.3d 895, 900 (9th Cir.

18

2001). “Force does not amount to a constitutional violation . . . if it is applied in a good

19

faith effort to restore discipline and order and not ‘maliciously and sadistically for the very

20

purpose of causing harm.’” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting

21

Whitley, 475 U.S. at 320-21); see also Hudson v. McMillian, 503 U.S. 1, 6 (1992)

22

(extending the Whitley Eighth Amendment analysis from prison riots to “whenever guards

23

use force to keep order”). “When prison officials maliciously and sadistically use force to

24

cause harm,” Hudson, 503 U.S. at 9, the Supreme Court has recognized, “contemporary

25

standards of decency always are violated . . . whether or not significant injury is evident.

26

Otherwise, the Eighth Amendment would permit any physical punishment, no matter how

27

diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id.

28

///
7
3:17-CV-1158 JLS (KSC)

1

Under Whitley and Hudson, the “core judicial inquiry” requires consideration of

2

several relevant factors: (1) “the need for application of force,” (2) “the relationship

3

between that need and the amount of force used,” (3) the “threat ‘reasonably perceived by

4

the responsible officials,’” (4) “‘any efforts made to temper the severity of a forceful

5

response,’” and (5) the extent of the injury suffered. Id. at 7 (quoting Whitley, 476 U.S. at

6

321). “From such considerations inferences may be drawn as to whether the use of force

7

could plausibly have been thought necessary, or instead evinced such wantonness with

8

respect to the unjustified infliction of harm as is tantamount to a knowing willingness that

9

it occur.” Whitley, 475 U.S. at 321.

10

“[T]he absence of an emergency may be probative of whether the force was indeed

11

inflicted maliciously or sadistically.” Jordan v. Gardner, 986 F.2d 1521, 1528 n.7 (9th

12

Cir. 1993) (en banc). The Supreme Court has made clear that the Eighth Amendment may

13

be violated by the use of excessive force against a prison inmate “‘[even] when the inmate

14

does not suffer serious injury.’” Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (quoting

15

Hudson, 503 U.S. at 4). While the extent of an inmate’s injury is relevant to the Eighth

16

Amendment inquiry, “[i]njury and force . . . are only imperfectly correlated, and it is the

17

latter that ultimately counts.” Id. at 38.

18
19

“[N]ot ‘every malevolent touch by a prison guard gives rise to a federal cause of
action.’” Wilkins, 559 U.S. at 38 (quoting Hudson, 503 U.S. at 9). Indeed,
“The Eighth Amendment’s prohibition of ‘cruel and unusual’
punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of
mankind.” . . . An inmate who complains of a “push or shove”
that causes no discernible injury almost certainly fails to state a
valid excessive force claim.

20
21
22
23
24
25

Id. at 37–38.

26

Here, no party disputes that there was a physical altercation between Plaintiff and

27

Defendant on June 14, 2016. See Compl. at 4; Opp’n at 3; Hernandez Decl. ¶¶ 5–6. There

28

is a genuine dispute, however, surrounding the circumstances under which Defendant
8
3:17-CV-1158 JLS (KSC)

1

admits he used physical force on Plaintiff. Defendant admits he “push[ed] [Plaintiff] in his

2

upper torso area.” See Hernandez Decl. ¶ 5. He further admits that he “wrapped both of

3

his arms around Plaintiff” and “transitioned [his] upper body over the top of [Plaintiff’s]

4

upper torso and back and utilized [his] own body weight to force him the rest of the way

5

to the ground.” Id. ¶ 6. Defendant claims this force was necessary because Plaintiff “was

6

engaging in behavior that could lead to violence.” Id. ¶ 15. For his part, Plaintiff asserts

7

that he was “walk[ing] out of the office when [Defendant] leaped on [his] backside placing

8

[him] in a chokehold from behind using his body weight to tackle [Plaintiff],” causing

9

Plaintiff to suffer a knee injury. See Compl. at 4. Plaintiff also states in his Opposition

10

that he was “assaulted from behind” by Defendant when he “attempted to walk away.”

11

Opp’n at 3.

12

Based on this evidence, a rational trier of fact could find that Defendant’s use of

13

force against Plaintiff was unprovoked, unnecessary, and carried out while Plaintiff was

14

walking away from Defendant. See Martinez v. Bryant, No. CV 06-5344-GW (AGR),

15

2009 WL 1456399, at *2 (C.D. Cal. May 19, 2009) (finding evidence that attack was

16

unprovoked created a genuine issue as to whether force was applied maliciously or

17

sadistically for the very purpose of causing harm) (citing Hudson, 503 U.S. at 4); see also

18

Felix v. McCarthy, 939 F.2d 699, 701–02 (9th Cir. 1991) (affirming denial of summary

19

judgment where evidence showed guards’ use of force was unprovoked). A rational trier

20

of fact could credit Defendant’s account and find his use of force justified because Plaintiff

21

was recalcitrant, had refused several direct orders to get down, and approached Defendant

22

in order to threaten or cause physical injury to Defendant. See Furnace, 705 F.3d at 1029

23

n.4 (noting the “spontaneous use of force can be necessary . . . in response to a [reasonably]

24

perceived danger or threat.”). These two possible outcomes indicate that there is a dispute

25

of material fact that must be decided by the fact finder.

26

While Defendant focuses on Plaintiff’s “very minor injuries” to show that the use of

27

force was “de minimus” and therefore not excessive, MSJ at 16 (citing Hudson, 503 U.S.

28

at 9–10), the severity of Plaintiff’s injury––although relevant––does not by itself show that
9
3:17-CV-1158 JLS (KSC)

1

Defendant’s actions were reasonable as a matter of law. See Wilkins, 559 U.S. at 37–38.

2

For example, in Wilkins, the plaintiff suffered only a bruised heel and back pain. Id. The

3

Supreme Court expressly rejected the notion that a significant injury is a required to show

4

excessive force under the Eighth Amendment. Id. at 38–39 & 39 n.2 (rejecting view that

5

“to support an Eighth Amendment excessive force claim a prisoner must have suffered

6

. . . more than de minimus physical injury”). Thus, while a reasonable factfinder could

7

conclude that the minimal nature of Plaintiff’s injury supports Defendant’s claim that the

8

amount of force he used was appropriately tempered and was only the amount of force

9

necessary under the circumstances for him to maintain or restore discipline, see Hudson,

10

503 U.S. at 7, a reasonable factfinder could also reasonably find, based on Plaintiff’s

11

allegations in his verified Complaint regarding the incident, that Defendant acted

12

“maliciously and sadistically for the very purpose of causing harm.” Compl. at 6.

13

Based on the evidence in the record before it, and in light of the relevant law

14

governing Plaintiff’s Eighth Amendment claim, the Court finds that Defendant has not

15

established the absence of a genuine dispute as to the material facts of Defendant’s use of

16

force. The Court may not resolve disputed issues of material fact by crediting one party’s

17

version of events and ignoring another. Wall v. Cnty. of Orange, 364 F.3d 1107, 1111 (9th

18

Cir. 2004) (“By deciding to rely on the defendants’ statement of fact [in deciding a

19

summary judgment motion], the district court became a jury.”); see also Smith v. City of

20

Hemet, 396 F.3d 689, 701 (9th Cir. 2005) (“Because [the excessive force inquiry] nearly

21

always requires a jury to sift through factual contentions, and to draw inferences therefrom,

22

we have held on many occasions that summary judgment or judgment as a matter of law

23

in excessive force cases should be granted sparingly.”) (citing Santos v. Gates, 287 F.3d

24

846, 853 (9th Cir. 2002)).

25

Summary Judgment as to the Eighth Amendment excessive force claims.

26

///

27

///

28

///

Therefore, the Court DENIES Defendant’s Motion for

10
3:17-CV-1158 JLS (KSC)

1

II.

First Amendment Retaliation Claims

2

Defendant seeks summary judgment as to Plaintiff’s retaliation claim on the ground

3

that Defendant “did not take any adverse action against Plaintiff because Plaintiff

4

previously filed an inmate appeal against Defendant.” MSJ at 18.

5

It is well established that “[p]risoners have a First Amendment right to file

6

grievances against prison officials and to be free from retaliation for doing so.” Watison

7

v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). The Ninth Circuit has set forth five basic

8

elements of a “viable claim of First Amendment retaliation” in the prison context:

9
10
11
12

(1) An assertion that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
the inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005).

13

Defendant claims that his “use of force was justified and reasonable given the

14

legitimate penological interest of safety and security issues raised by Plaintiff’s failure to

15

comply with orders.” See MSJ at 18. Plaintiff bears the ultimate burden to demonstrate

16

that legitimate correctional purposes, such as preserving institutional order and discipline,

17

did not motivate Defendant’s actions, Pratt v. Rowland, 65 F.3d 802, 806–808 (9th Cir.

18

1995), and that the use of force “did not reasonably advance a legitimate correctional goal,”

19

Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Rhodes, 408 F.3d at 568).

20

Nevertheless, Ninth Circuit authority holds that, “when there is a genuine issue of material

21

fact as to whether the action was taken in retaliation,” “prison officials may not defeat a

22

retaliation claim on summary judgment simply by articulating a general justification for a

23

neutral process.” Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003).

24

Here, the reasonableness of the use of force is a disputed issue of material fact. See

25

supra Analysis Section I. When taken as a whole and viewed in the light most favorable

26

Plaintiff, the Court finds that the record before it puts Defendant’s motives genuinely at

27

issue. See Bruce, 351 F.3d at 1289. A reasonable factfinder could conclude that Defendant

28

called Plaintiff into his office and used force against him in retaliation for filing an appeal
11
3:17-CV-1158 JLS (KSC)

1

against him. Therefore, the Court DENIES Defendant’s Motion for Summary Judgment

2

as to Plaintiff’s First Amendment retaliation claims.

3

III.

Fourteenth Amendment Claims

4

Defendant also seeks summary judgment of Plaintiff’s Fourteenth Amendment due

5

process claim because “Plaintiff bases his due process claim on the same set of facts

6

supporting his Eighth Amendment excessive force claim.” MSJ at 19. “Where an

7

amendment ‘provides an explicit textual source of constitutional protection against a

8

particular sort of government behavior,’ it is that Amendment that ‘must be the guide for

9

analyzing the complaint.’” Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (citing

10

Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)).

11

A review of the Complaint indicates that Plaintiff uses the same set of facts to

12

support both his Eighth and Fourteenth Amendment claims and Plaintiff does not offer any

13

argument in his Opposition, apart from the arguments supporting his Eight Amendment

14

claims, to support a Fourteenth Amendment claim. Therefore, the Court finds that

15

Plaintiff’s excessive force claims are more properly analyzed under the Eighth Amendment

16

and GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s Fourteenth

17

Amendment claims.

18

IV.

Excessive Force and Retaliation Claims under Heck v. Humphrey

19

Defendant argues that both Plaintiff’s excessive force claims and his retaliation

20

claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Defendant has attached a

21

copy of Plaintiff’s RVR in which he was charged with “behavior which could lead to

22

violence.” See Hernandez Decl., Ex. C. Following the issuance of the RVR, Plaintiff was

23

the subject of a disciplinary hearing that was later reheard. Id. On February 28, 2017, the

24

second disciplinary hearing was held. Hernandez Decl., Ex. D. Plaintiff was found guilty

25

of the charged offense and assessed 30 days of credit loss and 30 days of yard recreation

26

privileges. Id.

27

///

28

///
12
3:17-CV-1158 JLS (KSC)

1
2
3
4
5
6
7
8
9
10

In Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Heck, 512 U.S. at 486-87.

11

“Suits challenging the validity of the prisoner’s continued incarceration lie within

12

‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state prisoner

13

who is making a constitutional challenge to the conditions of his prison life, but not to the

14

fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003)

15

(quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973)) (holding that a writ of habeas

16

corpus is “explicitly and historically designed” to provide a state prisoner with the

17

“exclusive” means to “attack the validity of his confinement” in federal court).

18

Defendant argues that if the Court were to find in favor of Plaintiff on either the

19

excessive force claim or the retaliation claim, it would “be at odds” with the finding that

20

the use of force by Defendant was “an attempt to control Plaintiff’s aggressive and hostile

21

behavior and to gain Plaintiff’s compliance with lawful orders” and that Plaintiff’s action

22

“necessitated the use of force.” See MSJ at 21.

23

In support of his argument, Defendant points to Cunnigham v. Gates, 312 F.3d 1148

24

(9th Cir. 2002), in which the Ninth Circuit found that Heck bars section 1983 actions

25

involving claims of excessive force under the Fourth Amendment during an arrest. Id. at

26

21. Defendant does not cite to more recent authority, however, in which the Ninth Circuit

27

held that a conviction of resisting arrest under the California Penal Code “does not bar a

28

§ 1983 case for excessive force under Heck when the conviction and the § 1983 claim are
13
3:17-CV-1158 JLS (KSC)

1

based on different actions during ‘one continuous transaction.’” Hooper v. Cnty. of San

2

Diego, 629 F.3d 1127, 1134 (9th Cir. 2011) (citations omitted). Here, Plaintiff was charged

3

with “behavior which could lead to violence.” Even if it is undisputed that Plaintiff

4

exhibited such behavior, there is a disputed issue of fact as to whether Defendant’s response

5

to the behavior was excessive.

6

The Ninth Circuit has also held that “a § 1983 action is not barred under Heck unless

7

it is clear from the record that its successful prosecution would necessarily imply or

8

demonstrate that the plaintiff’s earlier conviction was invalid.” Smith v. City of Hemet,

9

394 F.3d 689, 699 (9th Cir. 2006) (en banc) (emphasis in original). Here, if Plaintiff were

10

to prevail in this action, it is not at all clear that it would invalidate his disciplinary

11

conviction of behavior which could lead to violence. Moreover, even if Plaintiff did

12

commit such behavior, that does not exclude the possibility that the force used in response

13

to the alleged actions of Plaintiff was excessive in light of the circumstances. Defendant

14

has supplied no legal authority to support his argument that Heck necessarily bars

15

Plaintiff’s retaliation claim, and Defendant does not give any reason why Plaintiff’s

16

disciplinary conviction would be invalidated if he were to prevail on his retaliation claims.

17

The Court therefore finds that it is not “clear from the record that its successful prosecution

18

would necessarily” imply the invalidity of Plaintiff’s disciplinary conviction. See Smith,

19

394 F.3d at 699. Thus, the Court DENIES Defendant’s Motion for Summary Judgment as

20

to Plaintiff’s First Amendment retaliation claims and Eighth Amendment excessive force

21

claims under Heck.

22

V.

Qualified Immunity

23

Defendant argues he is entitled to qualified immunity “because he did not knowingly

24

violate . . . Plaintiff’s clearly established rights.” See MSJ at 18–19. “Government officials

25

enjoy qualified immunity from civil damages unless their conduct violates ‘clearly

26

established statutory or constitutional rights of which a reasonable person would have

27

known.’” Jeffers, 267 F.3d at 910 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

28

(1982)). When presented with a qualified immunity defense, the central questions for the
14
3:17-CV-1158 JLS (KSC)

1

court are: (1) whether the facts alleged, taken in the light most favorable to Plaintiff,

2

demonstrate that the Defendant’s conduct violated a statutory or constitutional right; and

3

(2) whether the right at issue was “clearly established” at the time it is alleged to have been

4

violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). Although Saucier originally required

5

the Court to answer these questions in order, the U.S. Supreme Court has since held that

6

“while the sequence set forth [in Saucier] is often appropriate, it should no longer be

7

regarded as mandatory.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

8
9

As noted above, genuine disputes of material fact exist as to whether Defendant
violated Plaintiff’s Eighth Amendment rights.

See supra Analysis Section I.

This

10

conclusion is based not only on Plaintiff’s claims of improper motive, but also on specific,

11

nonconclusory factual allegations as to the specifics of the altercation. This evidence could

12

establish that Plaintiff was not resistant, facing away, and posing no discernible threat to

13

Defendant at the time he was grabbed from behind and, therefore, Defendant’s actions were

14

“unnecessary” and “wanton.” See Jeffers, 267 F.3d at 907 (citing Crawford-El v. Britton,

15

523 U.S. 574, 598 (1998)). Having found that the facts, taken in the light most favorable

16

to Plaintiff, demonstrate a constitutional violation, “the next . . . step is to ask whether the

17

right was clearly established.” Saucier, 533 U.S. at 201.

18

A right is “clearly established” when its contours are “sufficiently clear that a

19

reasonable official would understand that what he is doing violates that right.” Id. at 202.

20

This does not mean “that an official action is protected by qualified immunity unless the

21

very action in question has previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730,

22

739 (2002). Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”

23

Id. The “salient question” is whether the state of the law at the time gives officials “fair

24

warning” that their conduct is unconstitutional. Id. at 740. “This inquiry . . . must be

25

undertaken in light of the specific context of the case, not as a broad general proposition.”

26

Saucier, 533 U.S. at 202. Indeed, “officials can still be on notice that their conduct violates

27

established law even in novel factual circumstances.” Hope, 536 U.S. at 741. To find that

28

the law was clearly established, the court “need not find a prior case with identical, or even
15
3:17-CV-1158 JLS (KSC)

1

‘materially similar,’ facts.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130,

2

1136–37 (9th Cir. 2003) (quoting Hope, 536 U.S. at 741).

3

Defendant argues that, “[b]ased on the circumstances in this case, it would not have

4

been clear to a reasonable official that [Defendant]’s actions . . . [were] unlawful under the

5

circumstances.” MSJ at 23. The Court disagrees. The Ninth Circuit has specifically held

6

that “a prison guard’s use of excessive force was clearly established” since 1992 when the

7

Supreme Court held that the “settled rule [is] that ‘the unnecessary and wanton infliction

8

of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth

9

Amendment.’” Martinez, 323 F.3d at 1184 (quoting Hudson, 503 U.S. at 5). Hudson itself

10

held unconstitutional the unjustified use of physical force upon a non-resistant prisoner.

11

See Hudson, 503 U.S. at 7–10 (holding that guards violated Hudson’s Eighth Amendment

12

rights when they gratuitously punched and hit him, causing only minor injuries, while

13

escorting him between prison facilities); see also Martinez, 323 F.3d at 1184 (finding

14

qualified immunity improperly granted to officers who allegedly beat an inmate during a

15

cell extraction, despite his lack of resistance); McRorie v. Shimoda, 795 F.3d 780, 784 (9th

16

Cir. 1986) (finding Eighth Amendment violation when prisoner was assaulted while not

17

resisting). Defendant’s claims that “reasonable prison officials could have believed that

18

Plaintiff’s continued aggression and refusal warranted the de minimus use of force that

19

Defendant [] applied” is predicated solely on Defendant’s version of the facts surrounding

20

the altercation. See MSJ at 23–24. If Plaintiff proves that he was in fact leaving

21

Defendant’s office and, unprovoked, Defendant attacked him with his back turned, the

22

unconstitutionality of that action was clearly established. Therefore, the Court DENIES

23

Defendant’s Motion for Summary Judgment based on qualified immunity.

24

CONCLUSION

25

For the reasons explained, the Court GRANTS IN PART AND DENIES IN PART

26

Defendant’s Motion for Summary Judgment (ECF No. 38). Specifically, the Court

27

GRANTS Defendant’s Motion as to Plaintiff’s Fourteenth Amendment claims;

28

Defendant’s Motion is otherwise DENIED. The parties SHALL CONFER and SHALL
16
3:17-CV-1158 JLS (KSC)

1

FILE a proposed schedule of pretrial dates and deadlines within fourteen (14) days of the

2

electronic docketing of this Order.

3
4

IT IS SO ORDERED.
Dated: April 24, 2019

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
3:17-CV-1158 JLS (KSC)