Johnson v. Kelly et al

Filing 95

ORDER. IT IS HEREBY ORDERED that 91 defendants' motion for summary judgment is GRANTED; the Clerk of Court is instructed to ENTER JUDGMENT for defendants and against Johnson and to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 3/8/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Nathaniel Johnson,
2:11-cv-01858-JAD-VCF

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Plaintiff

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v.

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Kelly, et al.,

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Order Granting Amended Motion for
Summary Judgment, Entering
Judgment for Defendants and against
Plaintiff, and Closing Case

Defendants
[ECF No. 91]

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Former pretrial detainee Nathanial Johnson contends that he was subjected to excessive force

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by Clark County Detention Center (CCDC) guards when he was handcuffed, pulled to the ground,

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and subdued with a knee in his back while being moved from general population to segregated

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housing. He sues the guards for excessive force and their supervisors for acquiescing in his

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constitutional deprivation by not disciplining the guards, and he claims that he was deprived of

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procedural due process in the disciplinary hearing that followed the incident.1 On March 31, 2015, I

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granted defendants’ motion for summary judgment on all claims, finding that the record did not

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support Johnson’s excessive-force claim against the guards or his deliberate-indifference claim

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against their supervisors, and that Johnson’s procedural-due-process claim is barred by his failure to

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fully exhaust the CCDC’s grievance procedures.2

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Johnson appealed my summary-judgment order to the Ninth Circuit. On October 5, 2016, the

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Ninth Circuit vacated my grant of summary judgment on Johnson’s excessive-force claim only and

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remanded this claim to me for re-evaluation in light of the United States Supreme Court’s decision in

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Kingsley v. Hendrickson, which removed the subjective component from pretrial detainees’

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excessive-force claims.3 The defendants again move for summary judgment, arguing that the force

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ECF No. 37.

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ECF No. 75.

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ECF No. 83 (citing Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015)).

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used was not excessive even under Kingsley’s objective-unreasonableness standard and that, even if

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it were, the defendant officers are entitled to qualified immunity. The time for response has passed

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and Johnson, who is represented by counsel, filed none. I find that the force used was not objectively

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unreasonable, so I grant defendants’ motion, re-enter judgment for defendants and against Johnson,

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and close this case.4

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Background
A.

The incident
Nathaniel Johnson was a pretrial detainee in the CCDC in October 2011.5 Johnson contends

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that he was having difficulty staying focused on preparing his criminal defense in his general-

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population module, so he asked to be placed in administrative segregation.6 Officer Francisco

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Terriquez and Sgt. Patrick Kelly were the only guards working in the module that day. In response

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to Johnson’s request to be moved to segregation, Terriquez told Johnson to pack his things, and he

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began to escort Johnson, handcuffed, through the general-population area where other, unsecured

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inmates were walking around.7 Before they reached the exit door, Johnson was asked if he had any

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commissary items in his belongings because they are prohibited in segregation. Johnson admits he

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responded, “You run the MF, look for yourself.”8
As the soundless video of the incident9 shows, Terriquez then moved Johnson to face a wall

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near the exit to the module. Thirty seconds later, the officers pulled Johnson onto his stomach on the

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floor in a controlled maneuver and restrained him by placing pressure on his back using their knees

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I find this motion suitable for disposition without oral argument. L.R. 78-1.

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See generally No. 37 (amended complaint). I liberally construe all pro se motions and pleadings,
including the documents that Johnson filed before retaining counsel. See Bernhardt v. L.A. Cty., 339
F.3d 920, 925 (9th Cir. 2003); see also ECF No. 45 (notice of appearance by attorney).

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ECF No. 62 at 27; see also ECF No. 70-1 at 52–53 (deposition transcript).

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The surveillance-video recording supports this fact. ECF No. 62 at 57.

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ECF No. 65 at 16.

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Id. at 57. The court carefully viewed the video (three times) with all counsel in the courtroom at
the January 12, 2015, motion hearing and made detailed notes.
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as they kneeled over him on the ground. Back-up promptly arrived, Johnson was brought to his feet,

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and he was walked out of the module. The entire incident—from the moment the officers grabbed

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Johnson to when they released him—lasted approximately one minute and seven seconds.

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B.

Previous summary-judgment order

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In their first summary-judgment motion, defendants argued that Johnson could not prove his

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excessive-force claim because Kelly and Terriquez used only the force necessary to restrain him and

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prevent his hostile behavior to incite other unsecured inmates and that they enjoy qualified immunity

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from his claims.10 I reviewed Johnson’s allegations and evidence in light of the factors identified by

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the Ninth Circuit in White v. Roper: “(1) the need for application of force; (2) the relationship

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between that need and the amount of force used; (3) the extent of the injury inflicted; and (4) whether

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force was applied in a good faith effort to maintain and restore discipline”11 in order to determine

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whether the force used amounts to punishment and was thus unconstitutionally excessive.12 I found

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that the evidence, particularly defendants’ sworn statements and the video of the incident, along with

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Johnson’s deposition testimony, even construed in the light most favorable to Johnson, did not

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support his excessive-force claim. I reasoned that “[t]he level of force used, as apparent on the video

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of the incident and by the absence of serious injury, simply does not rise to the level of excessive

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force necessary to state a constitutional violation.”13 I therefore granted summary judgment on

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Johnson’s excessive-force claim.

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ECF No. 62 at 11.

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ECF No. 75 at 4 (citing White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990)).

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Id. at 4–7 (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441
U.S. 520, 535–39 (1979)).
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Id. at 6.
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Discussion
A.

Summary-judgment standards

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Summary judgment is appropriate when the pleadings and admissible evidence “show there

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is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

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law.”14 When considering summary judgment, the court views all facts and draws all inferences in

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the light most favorable to the nonmoving party.15 If reasonable minds could differ on the material

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facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the

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facts are undisputed and the case must proceed to the trier of fact.16

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If the moving party satisfies FRCP 56 by demonstrating the absence of any genuine issue of

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material fact, the burden shifts to the party resisting summary judgment to “set forth specific facts

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showing that there is a genuine issue as to the material facts”; it “must produce specific evidence,

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through affidavits or admissible discovery material, to show that” there is a sufficient evidentiary

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basis on which a reasonable fact finder could find in its favor.17 The failure to oppose a motion for

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summary judgment does not permit the court to enter summary judgment by default, but the lack of a

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response is not without consequences.18 As Rule 56(e) explains, “If a party fails . . . to properly

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address another party’s assertion of fact . . . the court may . . . consider the fact undisputed for

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purposes of the motion,” and “grant summary judgment if the motion and supporting

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materials—including the facts considered undisputed—show that the movant is entitled to it. . . .”19

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See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing FED. R. CIV. P. 56(c)).

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Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); see also Nw. Motorcycle Ass’n v.
U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

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Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted); Bhan v. NME
Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 248–49.

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Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).

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Fed. R. Civ. P. 56(e)(2) & (3); Heinemann, 731 F.3d at 917.
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B.

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Excessive-force claims after Kingsley v. Hendrickson
Before Kingsley, courts evaluating pretrial detainees’ excessive-force claims considered, at

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least in part, the subjective intent of the state actor.20 The Kingsley Court held that a pretrial detainee

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“must show only that the force purposely or knowingly used against him was objectively

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unreasonable;”21 he need not show that the officer was subjectively aware that the force used was

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excessive or that he intended it to be excessive. The Court identified several factors that may be

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relevant to this determination: “the relationship between the need for the use of force and the amount

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of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit

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the amount of force; the severity of the security problem at issue; the threat reasonably perceived by

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the officer; and whether plaintiff was actively resisting.”22

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Sgt. Kelly and Officer Terriquez maintain that their use of force against Johnson was

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reasonable because Johnson was behaving in a hostile manner and they wanted to ensure his actions

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did not incite the other unrestrained inmates in the module.23 When Johnson demanded to be moved

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to administrative segregation, Sgt. Kelly asked him if had gathered all of his possessions, to which

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Johnson defiantly answered something like “[y]ou run this mother fucking outfit, [so] you check.”24

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Though the video does not have audio, Johnson admitted at his deposition that he responded to

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Kelly’s face “[y]ou run the MF, look for yourself”25 in front of over a dozen nearby unsecured

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inmates. Johnson also failed to comply with Officer Terriquez’s commands to keep his face to the

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wall.26 The officers maintain that this defiant behavior in a jail setting committed in the midst of a

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See Roper, 901 F.2d at 1501..

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Kingsley, 135 S.Ct. at 2472.

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Id. at 2473 (internal citation omitted).

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ECF No. 91 at 8.

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ECF No. 91-3 at 2.

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ECF No. 64-2 at 13-14; ECF No. 65 at 17–18.

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ECF No. 91-3 at 2.

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group of unrestrained inmates raised significant safety concerns for two unarmed correctional

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officers because it could have foreseeably incited other inmates to pose a safety or flight risk.27 The

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officers conclude that the additional force of pulling Johnson onto his stomach on the floor and

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restraining him by placing pressure on his back using their knees as they kneeled over him on the

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ground until back-up arrived mere seconds later was reasonable.

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The video corroborates defendants’ claim that there were other unrestrained inmates in the

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area. The video also confirms the defendants’ assertion that “Sergeant Kelly and Officer Terriquez

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did not hit, kick or strike [Johnson] in any way” or “use any weapons or impact tools.”28 The only

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injury that Johnson claims to have suffered was pain in his ribs, and he testified that he “got real hot”

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and thought “he was going to pass out” while he was held on the ground.29

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Having now evaluated Johnson’s excessive-force claim under the objective standard set forth

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in Kingsley, I still find that defendants are entitled to summary judgment. I find that the minimal

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amount of force that the officers used to put Johnson on the ground and hold him there until back-up

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arrived is objectively reasonable in light of the severity of the security risk posed in a module of

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unsecured inmates, which defendants reasonably perceived to be a threat; the lack of physical injury

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to Johnson; and Johnson’s defiant behavior. I therefore grant defendants’ motion for summary

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judgment, re-enter judgment for defendants and against Johnson, and direct the Clerk of Court to

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close this case.

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ECF No. 91-3 at 1–2; ECF No. 91-5 at 5–6.

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ECF No. 65 at 19–21.

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Id. at 20.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that defendants’ motion for summary judgment

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[ECF No. 91] is GRANTED; the Clerk of Court is instructed to ENTER JUDGMENT for

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defendants and against Johnson and to CLOSE THIS CASE.

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Dated this 8th day of March, 2017.
_________________________________
________________________
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Jennifer A. Dorsey
nifer Dorsey
e
r
United States District Judge
ited States
d ta e
Judge
u e

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