Hoffman v. Nevins et al

Filing 21

ORDER Granting 11 Motion for Summary Judgment. Signed by Judge James C. Mahan on 10/17/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHARLES J. HOFFMAN,
#71124

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Plaintiff,

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vs.

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D. W. NEVINS, et al.,

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Defendants.

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2:11-cv-00248-JCM-LRL
ORDER

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Presently before the court is defendants Ted Nielson, Richard Liverani, and Francis Kim’s

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motion for summary judgment. (Doc. #11). On August 11, 2011, pro se plaintiff Charles Hoffman filed

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a motion to extend time to file a response to the summary judgment motion. (Doc. #16). The court

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granted Hoffman’s motion and extended time to respond by 60 days; plaintiff was required to respond

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on or before October 3, 2011. (Doc. #20). To date, Hoffman has not filed a response.

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The suit arises out of an incident at High Desert State Prison on January 8, 2010. Hoffman was

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being transported from Clark County Detention Center to High Desert State Prison along with thirteen

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other inmates. When Hoffman arrived at the prison, he was ordered to stand with his hands and head

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touching a wall in the intake hallway of the prison. Despite five direct orders from the officers to remain

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facing the wall, Hoffman took his hands off the wall and turned towards the officers. Hoffman alleges

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that he was the victim of excessive and unwarranted force in the ensuing scuffle. Hoffman suffered

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some “redness” to his upper and lower right eye, forehead, upper right chest, and upper mid back as a

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result of the altercation. The altercation did not cause broken skin, bone fracture, or joint dislocation.

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Additionally, Hoffman claims that his due process rights were violated in a subsequent disciplinary

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hearing on the matter.

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Legal Standard

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Summary judgment is appropriate when, viewing the facts in the light most favorable to the

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nonmoving party, there is no genuine issue of material fact which would preclude summary judgment

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as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); FED. R. CIV. P. 56(c);

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Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v.

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Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment

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is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.”

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Matsushita Elec., 475 U.S. at 586; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d

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1401, 1405 (9th Cir. 1985).

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The moving party bears the burden of informing the court of the basis for its motion, together

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with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp.v. Catrett,

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477 U.S. 317, 323 (1986); see also Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002) (expressing

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the standard for authentication of evidence on a motion for summary judgment). Once the moving party

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has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by

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affidavits, depositions, answer to interrogatories, or admissions on file, "specific facts showing that there

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is a genuine issue for trial." Celotex Corp., 477 U.S. 317, 324; FED. R. CIV. P. 56(c).

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Pursuant to Nevada Local Rule 7-2(d), “the failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to the granting of the motion.” However,

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the court will not automatically grant every unopposed motion. As the Ninth Circuit stated in Martinez

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v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003), a district court cannot grant a motion for summary

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judgment merely based on the fact that the opposing party failed to file an opposition. The court in

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Martinez held that the failure to oppose the motion does “not excuse the moving party’s affirmative duty

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under Rule 56 to demonstrate its entitlement to judgment as a matter of law.” Id.

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Discussion

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Defendants assert three separate arguments in their motion for summary judgment. Defendants

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argue: (1) there was no Eighth Amendment violation; (2) plaintiff was not deprived of any procedural

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due process rights during the disciplinary hearing; and (3) defendants are protected by qualified

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immunity. (Doc. #11).

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I.

Eighth Amendment Violation

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Defendants assert that Hoffman’s Eighth Amendment claim fails as a matter of law. According

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to defendants, defendant Nielson used force on Hoffman because he was justifiably concerned for his

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safety as well as that of other officers and inmates in the high-traffic intake hallway. The amount of

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force used was not excessive, and it was not inflicted in a malicious or sadistic manner. (Doc. #11).

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“After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and

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unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986)

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(internal citations omitted). To prove an Eighth Amendment violation occurred during the undertaking

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of a prison security measure, the test is whether force was applied “maliciously and sadistically for the

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very purpose of causing harm.” Robins v. Meecham, 60 F.3d 1436, 1440 (9th Cir. 1995) (quoting Wilson

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v. Seiter, 501 U.S. 294, 302 (1991)) (emphasis omitted).

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In this case, Hoffman’s Eighth Amendment claim does not survive defendants’ summary

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judgment motion. Nothing before the court indicates that defendants’ actions involved the “unnecessary

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and wanton infliction of pain,” Whitley, 475 U.S. 319, applied “maliciously and sadistically for the very

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purpose of causing harm.” Robins, 60 F.3d at 1440. While Hoffman’s allegations are no doubt serious,

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they do not rise to the level of an Eighth Amendment violation.

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Defendants have adequately met their burden by both informing the court of the basis for their

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motion and by presenting the court with evidence demonstrating the absence of any genuine issue of

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material fact. Celotex Corp., 477 U.S. at 323. Thus, Hoffman was required to “go beyond the

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pleadings” and “designate specific facts showing that there is a genuine issue for trial.” Id. Hoffman

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has failed to respond in any manner.

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II.

Due Process Violation

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Defendants also argue that Hoffman’s Fourteenth Amendment procedural due process claim fails

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as a matter of law. According to defendants, defendant Liverani properly exercised his discretion to

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exclude Hoffman’s proposed witness and the finding of guilt was supported by multiple sources of

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evidence.

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Hoffman bases his due process claim on Liverani’s refusal to permit a particular witness to testify

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at Hoffman’s disciplinary hearing on the incident. Hoffman also alleges that this disciplinary hearing

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was cited as one reason why he was subsequently denied parole.

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Due process rights apply to incarcerated individuals, but these rights “may be diminished by the

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needs and exigencies of the institutional environment.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974).

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Further, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply

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of rights due a defendant in such proceedings does not apply.” Id. at 556. An inmate is allowed to call

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witnesses and present evidence in his defense when permitting him to do so will not be unduly

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hazardous to institutional safety or correctional goals. Id. Finally, a reviewing court “should not be too

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ready to exercise oversight and put aside the judgment of prison administrators.” Id.

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Similar to Hoffman’s Eighth Amendment claim, defendants have informed the court of the basis

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for their motion and presented the court with evidence demonstrating the absence of any genuine issue

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of material fact. Celotex Corp., 477 U.S. at 323. Hoffman has not responded to defendants’ motion.

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This court is reluctant to put aside the judgment of prison administrators and second guess

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Liverani’s decision not to allow Hoffman’s witness to testify. Hoffman’s procedural due process claim

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does not survive defendants’ summary judgment motion.

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III.

Qualified Immunity

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Perhaps most importantly, defendants argue that they are protected by the doctrine of qualified

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immunity. Qualified immunity applies “if the right asserted by the plaintiff was not ‘clearly established’

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or the officer could have reasonably believed his conduct was lawful.” Schroeder v. McDonald, 55 F.3d

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454, 461 (9th Cir. 1995) (citing Romero v. Kitsap County, 931 F.2d 624 627 (9th Cir. 1991)). “A

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reasonable belief that the conduct was lawful is sufficient to secure qualified immunity.” Kulas v.

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Valdez, 159 f.3d 453, 456 (9th Cir. 1998).

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Under the facts of this case, defendants are entitled to qualified immunity. Hoffman has not

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established that the defendants violated a “clearly established statutory or constitutional right” of which

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a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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Conclusion
Neither Hoffman’s Eighth Amendment nor his procedural due process claims survive defendants’

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motion for summary judgment.

Defendants have presented the court with sufficient evidence

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demonstrating that there is no genuine issue of material fact remaining for trial. Additionally, Hoffman

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has not responded to defendants’ motion, even after being granted a 60-day extension to respond. See

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Local Rule 7-2(d).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Ted Nielson,

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Richard Liverani, and Francis Kim’s motion for summary judgment (doc. #11) be, and the same hereby

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is, GRANTED.

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DATED this 17th day of October, 2011.

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UNITED STATES DISTRICT JUDGE
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