Jamal Damon Hendrix v. Cox et al

Filing 96

ORDER - Defendants' Motion for Summary Judgment (ECF No. 72 ) is granted in part and denied in part. The Court permits the following claims to proceed: the retaliation claim against Dunn in Count I; the excessive force claims against Daws on, Nelson, Scott, Trailer, and Jones in Count I; the deliberate indifference claim against Maryeswar, Adams, Murphy, and Aranas in Count I; the excessive force claim against Emling in Count II; the procedural due process and retaliation claims against Potter in Count III. Defendants have until 10/18/2017 to file their renewed motion motion for summary judgment on the basis of qualified immunity. It is further ordered that Defendants' Motion to Seal (ECF No. 74 ) is granted. Signed by Judge Miranda M. Du on 9/27/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 JAMAL D. HENDRIX, Plaintiff, 10 11 Case No. 2:15-cv-00560-MMD-NJK ORDER v. STATE OF NEVADA, et al., 12 Defendants. 13 14 I. SUMMARY 15 This case concerns a prisoner’s First, Eighth, and Fourteenth Amendment claims 16 brought pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants’ Motion 17 for Summary Judgment (“Motion”) (ECF No. 72). Also pending before the Court is 18 Defendants’ Motion for Leave to File Confidential Documents under Seal in Support of 19 Defendants’ Motion (“Motion to Seal”) (ECF No. 74). Plaintiff failed to file a response to 20 either the Motion or the Motion to Seal. 21 After reviewing the Motion and the accompanying exhibits, the Court grants in part 22 and denies in part Defendants’ Motion in the manner discussed below. The Court also 23 grants Defendants’ Motion to Seal. 24 II. BACKGROUND 25 Plaintiff Jamal Hendrix (“Plaintiff” or “Hendrix”), who is proceeding pro se, is an 26 inmate in the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 72 27 at 2.) Plaintiff brings claims against various NDOC employees alleging claims of 28 retaliation, excessive force, deliberate indifference to serious medical needs, and 1 procedural as well as property due process violations that occurred while Plaintiff was 2 housed at High Desert State Prison (“HDSP”). The claims arise from events that occurred 3 on three separate dates: November 15, November 16, and November 18, 2013. 4 In Count I, Plaintiff asserts claims relating to a cell move and use of force incident 5 on November 15, 2013. According to Plaintiff, he was escorted by Defendant Gibson to 6 a classification hearing around 10:30 am that day. (ECF No. 9 at 10, 21.) During this 7 hearing, Defendant Filson ordered that Plaintiff be returned to his cell. (Id. at 10-11, 21.) 8 Sometime after Plaintiff was returned to his cell, Filson stopped by Plaintiff’s cell and told 9 him that as long as he had a bad attitude, he would not let Plaintiff out of administrative 10 segregation. (Id. at 11, 22.) Filson also stated that if Plaintiff dropped his lawsuit against 11 certain NDOC staff and stopped writing grievances then Filson would consider giving 12 Plaintiff another classification hearing. (Id. at 11-12, 22.) Around this time, Defendants 13 Michael Anderson1 and Dunn also supposedly showed Plaintiff the inmate grievance he 14 had filed against them for racial discrimination, and Anderson told Plaintiff that the 15 grievance would be the last he wrote. (Id. at 11-12, 22-23.) Plaintiff also claims that 16 Defendants Filson, Williams, Leavitt and Neven denied Plaintiff’s grievances relating to 17 his complaint against Michael Anderson and Dunn regarding retaliation. (ECF No. 9-1 at 18 12.) 19 Later that day, Defendant Gibson informed Plaintiff he was being moved. (ECF No. 20 9 at 12.) Defendants Joseph, Scott and Nelson placed restraints on Plaintiff’s hands and 21 legs and began to remove Plaintiff’s personal property from his cell. (Id.) Nelson took 22 Plaintiff to disciplinary segregation, but on the way Plaintiff saw Joseph and Scott take 23 Plaintiff’s legal boxes to the property room and place legal documents in a trash can. (Id. 24 at 12-13.) Plaintiff claims that Michael Anderson and Dunn authorized the confiscation of 25 these legal documents. (Id. at 13.) Plaintiff asked Nelson to take him to the property 26 sergeant, where Nelson permitted Plaintiff to speak to the property room sergeant. (Id. at 27 28 1There are two defendants with the last name Anderson in this case; therefore, the Court adds their first names to differentiate them. 2 1 13.) Dawson then appeared at the property room, grabbed Plaintiff’s arm, and ordered 2 Nelson to take Plaintiff to disciplinary housing. (Id. at 14.) Nelson and Dawson then began 3 “aggressively” walking Plaintiff to disciplinary segregation. (Id.) Dawson allegedly 4 grabbed Plaintiff’s head and pushed it down while forcing Plaintiff to walk. (Id.) Dawson 5 then supposedly began hitting Plaintiff in the face, and Plaintiff fell down. (Id. at 14-15.) 6 Nelson then yanked Plaintiff up, bent Plaintiff’s arm up in the air, and kneed Plaintiff in the 7 face. (Id. at 15.) Dawson then supposedly kneed Plaintiff in the chest and punched 8 Plaintiff again. (Id.) Dawson then rolled Plaintiff onto his stomach and placed his knee on 9 the lower part of Plaintiff’s back. (Id.) Plaintiff states that he was screaming to see medical. 10 (Id.) 11 Plaintiff states that Defendant Jones came over and placed his knee on Plaintiff’s 12 neck while simultaneously punching him in the face, Defendant Paul Anderson kneed 13 Plaintiff twice on the left side of the rib cage, and Defendant Trailer placed his foot on 14 Plaintiff’s face. (Id.) Supposedly Dawson and Jones told Plaintiff that if he stopped writing 15 grievances and let go of the lawsuit then things would start getting better for Plaintiff. (Id. 16 at 16.) Michael Anderson and Dunn arrived on scene and supposedly stated that they 17 had “got” Plaintiff and that Plaintiff’s books now belonged to them. (Id.) Dawson, Jones, 18 Trailer and Paul Anderson then yanked Plaintiff up from the ground, took him to a building, 19 and forced him to strip search while he was in extreme pain. (Id.) Plaintiff states that he 20 asked Dawson if he could go to the infirmary, but Dawson told Plaintiff to “shut up and 21 stop asking because he wasn’t going to go.” (Id. at 17.) Plaintiff also states that Scott told 22 Dawson to put the handcuffs tightly on Plaintiff’s writing hand, that Trailer, Jones, and 23 Paul Anderson put the leg shackles on too tightly, and that Jones refused to let Plaintiff 24 see medical, stating, “Medical already saw you.” (Id.) 25 On the way to the disciplinary unit, Defendant Stroud purportedly ignored Plaintiff’s 26 pleas for help while watching as Jones and Trailer dragged Plaintiff into his cell. (Id. at 27 17-18.) Plaintiff states that he became dizzy after Jones squeezed Plaintiff’s neck and 28 Trailer squeezed Plaintiff’s upper arm. (Id. at 17.) At the cell door, Jones supposedly 3 1 kneed Plaintiff in the back of the leg, causing Plaintiff to fall and hit his chin on the cell 2 floor. (Id.at 18.) 3 In Count II, Plaintiffs asserts claims relating to a preliminary disciplinary hearing. 4 Around 5:00 pm on November 16, 2013, Defendant Davis escorted Plaintiff to Defendant 5 Emling’s office where Plaintiff received notice of disciplinary charges for assault on staff. 6 (Id.) Emling called Plaintiff’s witness, Defendant Nelson. (Id.) Plaintiff requested that the 7 telephone conversation with Nelson be placed on speaker phone or that he be able to 8 listen to Nelson’s response. (Id. at 18-19.) Emling declined and allegedly choked Plaintiff 9 before sending Plaintiff back to solitary confinement. (Id. at 19.) Plaintiff states that 10 Defendants Daniels, Nash, Neven and Williams denied Plaintiff’s grievances relating to 11 the incident. (ECF No. 9-1 at 14.) 12 In Count III, Plaintiff states claims relating to a disciplinary hearing. Around 3:00 13 pm on November 18, 2013, a disciplinary hearing on assault was conducted. (ECF No. 9 14 at 19.) Allegedly Defendant Potter told Plaintiff he had already been found guilty of the 15 charges and Plaintiff would be sent to Ely State Prison. (Id.) In response, Plaintiff told 16 Potter he had a witness. (Id.) Potter then supposedly told Plaintiff no witness would be 17 called, stating that one of the officers had been suspended as a result of Plaintiff’s 18 testimony to the Inspector General regarding an excessive force incident. (Id.) Plaintiff 19 was found guilty of assault. (Id. at 20.) Plaintiff also claims that Defendants Neven, Foster, 20 Daniels and Filson denied his inmate grievances regarding this incident. (ECF No. 9-1 at 21 17.) 22 III. MOTION TO SEAL (ECF No. 74) 23 Defendants request that certain exhibits be sealed—exhibits A, D, E, F, G, H, and 24 J (ECF Nos. 75-1, 75-2, 75-3, 75-4, 75-5, 75-6, 75-7)—because they include Plaintiff’s 25 confidential medical records, case notes, and a video recording of a strip search of 26 Plaintiff. (ECF No. 74 at 3.) To establish that the documents are sealable, the parties 27 “must overcome a strong presumption of access by showing that ‘compelling reasons 28 supported by specific factual findings ... outweigh the general history of access and the 4 1 public policies favoring disclosure.’” Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 679 2 (9th Cir.2010) (citation omitted). 3 Defendants argue that pursuant to NRS § 629.061, Administrative Regulation 639, 4 and the Health Information Protection and Portability Act, Exhibits D, E, F, G, and H 5 should be sealed because they consist of Plaintiff’s medical records. (ECF No. 74 at 3.) 6 Because Plaintiff has not waived his confidentiality and to prevent Plaintiff’s personal 7 possession of the documents in his cell, Defendants contend that these exhibits should 8 be filed under seal. (Id.) Defendant argues that because Exhibit A includes confidential 9 and sensitive details about Plaintiff as well as other inmates whom Plaintiff has associated 10 with, it should remain sealed to prevent Plaintiff’s personal possession of the document 11 in his cell and to protect Plaintiff’s confidentiality. (Id.) Defendant also argues that Exhibit 12 J should remain under seal to protect Plaintiff’s privacy because it includes obscene 13 language and footage of Plaintiff’s strip search on November 15, 2013. (Id.) The Court 14 agrees and finds that all of the exhibits should remain under seal as they contain 15 confidential information about Plaintiff, including Plaintiff’s medical records as well as 16 medical kites and a video in which Plaintiff appeared naked. Therefore, Defendants’ Motion to Seal is granted. 17 18 IV. MOTION 19 A. Legal Standard 20 “The purpose of summary judgment is to avoid unnecessary trials when there is 21 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 22 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 23 pleadings, the discovery and disclosure materials on file, and any affidavits show “there 24 is no genuine issue as to any material fact and that the moving party is entitled to 25 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue 26 is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 27 could find for the nonmoving party, and a dispute is “material” if it could affect the outcome 28 of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 5 1 (1986). Where reasonable minds could differ on the material facts at issue, however, 2 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 3 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 4 resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 5 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 6 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 7 draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement 8 Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 9 The moving party bears the burden of showing that there are no genuine issues of 10 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order 11 to carry its burden of production, the moving party must either produce evidence negating 12 an essential element of the nonmoving party’s claim or defense or show that the 13 nonmoving party does not have enough evidence of an essential element to carry its 14 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., 15 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s 16 requirements, the burden shifts to the party resisting the motion to “set forth specific facts 17 showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving 18 party “may not rely on denials in the pleadings but must produce specific evidence, 19 through affidavits or admissible discovery material, to show that the dispute exists,” Bhan 20 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply 21 show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 22 NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere 23 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 24 Anderson, 477 U.S. at 252. 25 Hendrix did not respond to the Motion despite the multiple extensions of time 26 granted. Nevertheless, the Court must consider the allegations in Hendrix’s verified 27 complaint as evidence in evaluating his opposition to Defendants’ Motion. Jones v. 28 Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (finding that courts must consider a pro se 6 1 party’s contentions offered in motions and pleadings as evidence in his opposition to the 2 motion for summary judgment “where such contentions are based on personal knowledge 3 and set forth facts that would be admissible in evidence, and where [he] attested under 4 penalty of perjury that the contents of the motions or pleadings are true and correct.”). Count I2 5 B. 6 In Count I, Hendrix brings claims for retaliation, excessive force, deliberate 7 indifference to serious medical needs, and property due process violations against 8 several Defendants. (ECF No. 9 at 10-19, 21-23; ECF No 9-1 at 1-12; ECF No. 8 at 7- 9 10.) The Court grants in part and denies in part summary judgment as to the claims in 10 Count I. 11 i. First Amendment Retaliation Claim 12 Hendrix alleges that on November 15, 2013, Defendants Michael Anderson and 13 Dunn3 ordered Defendants Joseph, Scott, and Nelson to confiscate his legal materials 14 because Hendrix had filed a racial discrimination grievance against Michael Anderson. 15 (ECF No. 9 at 22-23; ECF No. 9-1 at 1-3.) He also alleges that Defendants Gibson, 16 Leavitt, Kuloloia, and Filson retaliated against him for filing grievances and lawsuits 17 against NDOC staff by refusing to allow Hendrix to proceed with his classification hearing 18 (ECF No. 9 at 21-22) and that Defendants Williams, Filson, Neven, and Daniels retaliated 19 against him for filing grievances by denying his particular grievances about the prior two 20 incidents (ECF No. 9-1 at 12.) 21 A viable First Amendment retaliation claim in the prison context requires a plaintiff 22 to allege “(1) [a]n assertion that a state actor took some adverse action against an inmate 23 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 24 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 25 /// 26 27 28 2In the section discussing Count I, the Court addresses each claim by type, while in the sections discussing Counts II and III the Court addresses the claims by defendant. 3Dunn did not join this Motion; therefore, the merits of this claim are analyzed only as they pertain to Defendant Michael Anderson. 7 1 2 advance a legitimate correctional goal.” See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (internal footnote omitted). 3 Defendant Michael Anderson contends that as a law librarian he did not have the 4 authority to order or authorize Defendants Joseph and Scott, who are correctional 5 sergeants, or Defendant Nelson, who is a correctional officer, to search, confiscate, or 6 destroy Hendrix’s legal materials. (ECF No. 72 at 10-11; ECF No. 72-23 at 3.) As a result, 7 Michael Anderson contends that he did not take any adverse action against Hendrix as 8 is required for a claim of retaliation. As to the claim against Michael Anderson, Plaintiff 9 merely alleges that his legal boxes were “authorized to be confiscated by . . . Anderson” 10 and that prior to this confiscation Michael Anderson stated to Hendrix that he “might as 11 well give all [his] legal material away.” (ECF No. 9 at 12-13.) Hendrix also alleges that 12 while Hendrix was detained that same day, Michael Anderson stated, “I told you I would 13 get you, now your books belong to us.” (ECF No. 9 at 16.) None of these allegations 14 address whether Michael Anderson had the authority to order correctional sergeants or 15 officers to confiscate Hendrix’s legal boxes. Moreover, in Defendants Joseph, Scott, and 16 Nelson’s declarations, they state that they confiscated excessive legal materials when 17 moving Hendrix to a segregation unit because he was allowed only ten checked-out law 18 materials—such as case laws and references—at a time, and any excess law materials 19 were considered to be property of the prison or state. (ECF No. 72-17 at 3; ECF No. 72- 20 24 at 3-4; ECF No. 72-25 at 3-4.) Defendant Joseph also states that he consulted 21 Anderson as to what law materials belonged to the state, but Joseph states that Michael 22 Anderson did not order or authorize him or the other officers to destroy Hendrix’s property. 23 (ECF No. 72-24 at 4.) Because Hendrix does not dispute that Anderson, the law librarian, 24 does not have the authority to order correctional sergeants or officers to confiscate an 25 inmate’s materials, this claim is granted in favor of Michael Anderson. 26 Similarly, Defendants Joseph, Nelson and Scott contend that they were not 27 ordered by Anderson to confiscate Hendrix’s legal materials and that, if the Court finds 28 that the confiscation of Hendrix’s materials still amounts to an adverse action, there was 8 1 a legitimate penological goal for confiscation of Hendrix’s property. (ECF No. 72 at 11.) 2 Thus, because Hendrix was being transported to a segregation unit where there are more 3 restrictive property limits than in general population units, the confiscation was based on 4 prison policy limiting the number of materials allowed in disciplinary segregation. (Id.) 5 Although the Court must view the evidence in the light most favorable to Plaintiff, Plaintiff 6 has failed to rebut Defendants’ assertion that the basis of confiscation was a legitimate 7 penological goal. Therefore, summary judgment is granted in favor of Defendants Joseph, 8 Nelson and Scott as to the retaliation claim against them in Count I. 9 Defendant Filson contends that he did not allow Hendrix to proceed with his 10 classification hearing because Hendrix’s behavior threatened safety and security—a 11 legitimate penological interest—and that Hendrix’s removal is consistent with NDOC 12 regulations. (ECF No. 72 at 10.) Because Hendrix failed to respond to the motion for 13 summary judgment, he has failed to rebut the justification for his removal from the hearing. 14 Moreover, Filson’s denial of Hendrix’s grievances related to this incident is consistent with 15 the removal being on the basis of a legitimate penological interest. Therefore, summary 16 judgment is granted in favor of Filson as to the claims against him in Count I. 17 In light of the Court’s finding that the removal of Hendrix was based on a legitimate 18 penological interest, summary judgment is also granted in favor of Defendants Gibson, 19 Leavitt, Kuloloia, Williams, Neven, and Daniels as to the claim against them in Count I. 20 The First Amendment retaliation claim in Count I is therefore granted in favor of 21 Defendants Michael Anderson, Joseph, Nelson, Scott, Filson, Gibson, Leavitt, Kuloloia, 22 Williams, Neven, and Daniels. 23 ii. Eighth Amendment Excessive Force Claim 24 Hendrix alleges that Defendants Dawson, Nelson, Paul Anderson, Trailer, Jones,4 25 Scott, Stroud, Neven, Filson, Williams, and Dreesen used excessive force when escorting 26 /// 27 28 4Jones did not join the Motion; therefore, this claim is addressed only as to the other listed defendants. 9 1 him to disciplinary segregation on November 15, 2013. (ECF No. 9 at 14-18; No. 9-1 at 2 3-11.) 3 An Eighth Amendment claim for excessive force turns on whether force was 4 applied in a good-faith effort to maintain or restore discipline, or whether it was applied 5 maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 6 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining 7 whether the use of force was wanton and unnecessary, the court may consider the need 8 for application of force, the relationship between that need and the amount of force used, 9 the threat reasonably perceived by the responsible officials, and any efforts made to 10 temper the severity of a forceful response. Id. at 7. While an inmate need not have 11 suffered a serious injury in order to bring an excessive force claim against a prison official, 12 the Eight Amendment’s prohibition on cruel and unusual punishments necessarily 13 excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10. 14 Hendrix alleges that Dawson grabbed his head and forced it downwards, ordering 15 him to continue walking whilst handcuffed and shackled. (ECF No. 9-1 at 4.) Dawson then 16 purportedly began punching Hendrix in the face, “ran and jumped” on Hendrix’s chest 17 with his knee, and finally turned Hendrix onto his stomach while pressing his knee into 18 Hendrix’s back. (Id. at 5.) By contrast, Dawson avers that as he escorted Hendrix to a 19 new housing unit, Hendrix ceased walking and pulled his head and upper body back in 20 an aggressive motion towards Dawson, which appeared to be an attempt to head butt 21 him. (See ECF No. 72-9 at 2.) Dawson responded with force, securing Hendrix to the 22 ground in order to “restore [his] discipline and to maintain safety and security.” (ECF No. 23 72 at 14.) Defendants also point to medical records showing a lack of “wounds, abrasions, 24 or problems that would be present after the type of excessive force alleged by Hendrix.” 25 (Id.) However, the Court finds that the exact degree of force used by Dawson is 26 indiscernible from the evidence submitted, as in the Report on the Use of Force Defendant 27 Nelson states that Dawson used an “under hook take down” but in Defendant Nelson’s 28 declaration he states that Dawson “quickly restrained” Hendrix by grabbing Hendrix’s 10 1 shoulder and placing him on the ground. (ECF No. 72-9 at 2; ECF No. 72-17 at 4.) 2 Meanwhile, in Dawson’s declaration, he states that he “slid [his] hand up [Hendrix’s] back 3 onto [Hendrix’s] shoulder, and secured [Hendrix] to the ground.” (ECF No. 72-18 at 4.) 4 Even if Hendrix had attempted to strike Dawson using his head in the manner of a head 5 butt, it is unclear what degree of force was actually used in response or whether any force 6 preceded the restraint, as Hendrix alleges in his verified complaint that Dawson 7 unnecessarily punched him in the face prior to being restrained on the ground. (See ECF 8 No. 9 at 14-15.) Therefore, the Court denies summary judgment as to Dawson on the 9 excessive force claim against him in Count I. 10 Similarly, Hendrix contends that during the same incident, Defendant Nelson 11 grabbed him by the handcuffs, bent his left arm up in the air, and then kneed him in the 12 face. (ECF No. 9 at 15.) While Nelson states that he merely secured Hendrix’s upper left 13 torso after Dawson responded to Hendrix’s attempted head butt, there is a genuine factual 14 dispute as to whether Nelson used more than de minimis force because it is unclear if 15 this incident occurred prior to initiation of the submitted video recording (ECF No. 76). 16 Therefore, the Court denies summary judgment as to the excessive force claim against 17 Nelson in Count I. 18 Hendrix alleges that Paul Anderson kneed him twice in his ribs after Dawson and 19 Nelson had secured him on the ground. (ECF No. 9-1 at 6.) In his declaration, however, 20 Paul Anderson5 states that he has never worked at HDSP. (ECF No. 72-27 at 3.) Because 21 Plaintiff fails to indicate otherwise, the Court finds there is no genuine dispute as to 22 whether Paul Anderson kicked Hendrix. Therefore, summary judgment is granted in favor 23 of Paul Anderson as to the excessive force claim against him in Count I. 24 Hendrix alleges that while he was on the ground following the use of force by 25 Nelson and Dawson, Defendant Trailer placed his foot on Hendrix’s face and that Trailer 26 subsequently applied Hendrix’s leg shackles too tightly and dragged Hendrix into his cell. 27 28 5Hendrix calls this correctional officer merely “Anderson” in the complaint. (ECF No. 9 at 15.) 11 1 (ECF No. 9-1 at 6, 8, 10.) Trailer avers in his declaration that these events did not 2 transpire. (ECF No. 72-28 at 3.) While Defendants have also filed a video recording 3 following the use of force incident, the video begins with Hendrix face down on the ground 4 and several officers restraining him, making it unclear to the Court how long Hendrix was 5 restrained on the ground before the recording began. (See ECF No. 76.) Therefore, there 6 are triable issues of fact as to whether Trailer used unnecessary and excessive force prior 7 to the initiation of recording. The Court therefore denies summary judgment as to the 8 excessive force claim against Trailer in Count I. 9 Hendrix alleges that when a HDSP nurse evaluated his injuries following the use 10 of force incident, Defendant Scott pushed her off 6 and instructed Defendant Dawson to 11 tightly handcuff Hendrix’s writing hand. (ECF No. 9-1 at 7-8.) Defendants argue that 12 because Scott made no physical contact with Hendrix, he did not use excessive force 13 against him. (See ECF No. 72 at 15-16.) However, Defendant Scott was a correctional 14 sergeant while Dawson was a senior correctional officer, ostensibly making Scott 15 Dawson’s supervisor. (See ECF No. 72-18 at 3; see also ECF No. 72-25 at 3.) Therefore, 16 there are triable issues of fact as to whether Scott directed Dawson to engage in 17 excessive force. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that “[a] 18 supervisor is only liable for constitutional violations of his subordinates if the supervisor 19 participated in or directed the violations, or knew of the violations and failed to act to 20 prevent them”). However, the Court agrees with Defendants that if Scott had pushed the 21 nurse, this does not demonstrate an “unnecessary and wanton infliction of pain” on 22 Hendrix. (ECF No. 72 at 16 (quoting Whitley v. Albers, 475 U.S. at 320).) The Court 23 therefore denies summary judgment as to the excessive force claim against Defendant 24 Scott in Count I. 25 Hendrix alleges that Defendant Stroud, an associate warden at HDSP, ignored his 26 pleas for help while watching correctional officers drag Hendrix into his cell. (ECF No. 9 27 28 /// 6It is unclear whether this is meant figuratively or literally. 12 1 at 17; ECF No. 9-1 at 9; ECF No. 72-29 at 3.) Defendants contend that because Stroud 2 did not personally participate in the alleged excessive force, he cannot be liable for it. 3 (ECF No. 72 at 16.) The Court agrees. Here, there are also no allegations that Stroud 4 authorized or directed the purported use of excessive force by officers against Hendrix. 5 Therefore, summary judgment is granted in favor of Defendant Stroud as to the excessive 6 force claim against him in Count I. 7 Hendrix alleges that Defendants Neven, Filson, Williams, and Dreesen condoned 8 the excessive force against Hendrix through the grievance process. (ECF No. 9-1 at 10.) 9 Defendants argue that neither supervisory liability nor grievance responses give rise to 10 liability under section 1983. (ECF No. 72 at 16.) The Court agrees. Hendrix does not claim 11 that these Defendants authorized or directed the use of force, and their knowledge 12 through the grievance process after the fact would not have enabled them to prevent the 13 alleged use of force from occurring. 14 Hendrix also alleges that Neven failed to properly train Defendants, which resulted 15 in the excessive force incident. Defendants argue that because Hendrix fails to allege any 16 actual personal participation by Neven and there are no allegations Neven knew of the 17 alleged force by other Defendants, summary judgment should be granted in his favor. 18 (ECF No. 72 at 16-17.). The Court agrees. 19 20 21 Therefore, the Court grants summary judgment as to the excessive force claim against Defendants Neven, Filson, Williams and Dreesen. iii. Eighth Amendment Deliberate Indifference Claim 22 Hendrix alleges that Adams, Murphy, and Aranas were deliberately indifferent to 23 Hendrix’s serious medical needs by denying his grievances requesting medical attention 24 related to the excessive force incident on November 15, 2013. (ECF No. 9-1 at 11.) 25 The Eighth Amendment prohibits the imposition of cruel and unusual punishment 26 and “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and 27 decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation marks and 28 citation omitted). “To establish an Eighth Amendment violation, a plaintiff must satisfy 13 1 both an objective standard—that the deprivation was serious enough to constitute cruel 2 and unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 3 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). To establish the first prong, “the plaintiff 4 must show a serious medical need by demonstrating that failure to treat a prisoner’s 5 condition could result in further significant injury or the unnecessary and wanton infliction 6 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks 7 omitted). To satisfy the second prong, a plaintiff must show “a purposeful act or failure to 8 respond to a prisoner’s pain or possible medial need and [ ] harm caused by the 9 indifference.” Id. “Indifference may appear when prison officials deny, delay or 10 intentionally interfere with medical treatment, or it may be shown by the way in which 11 prison physicians provide medical care.” Id. (internal quotation marks omitted). 12 Defendants contend that they were not deliberately indifferent to Hendrix’s medical 13 needs because he was evaluated at least six different times by medical staff at both HDSP 14 and ESP in the two and a half months following the incident. (ECF No. 72 at 19.) 15 Defendants claim that a nurse, Manjeshwar, arrived on the scene and evaluated Hendrix, 16 concluding that there were no objective signs of injury. (Id.) Defendants further contend 17 that Hendrix did not have a serious medical need because he walked out of a medical 18 appointment following the use of force incident while still at HDSP, upon arrival at ESP it 19 was noted that he did not have any medical issues, and he refused a call with medical 20 staff at ESP soon after arrival. (ECF No. 72 at 20.) However, given the time period after 21 the use of force incident occurred (November 15) and the date that Hendrix was 22 transferred to ESP (December 4), the only documentation about his medical conditions 23 regarding the November 15 incident while he was still at HDSP was that same day, and 24 the fact that Hendrix was sending medical kites regarding lingering pain from the use of 25 force incident in February of 2014 at ESP (ECF No. 75-3 at 17), the Court finds that there 26 is a genuine dispute of material fact as to whether Defendants Adams, Murphy, and 27 Aranas denied his medical kites requesting further medical care. Based on such 28 evidence, there remains a genuine dispute of material fact as to whether the denial of 14 1 grievances exacerbated the purported injuries sustained by Hendrix during the use of 2 force incident, see Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th 3 Cir. 1985). 4 5 The Court therefore denies summary judgment as to the deliberate indifference claim against Adams, Murphy, and Aranas. 6 iv. Due Process Claim 7 Hendrix alleges that on November 15, 2013, Defendants Joseph and Scott 8 confiscated and destroyed Hendrix’s legal materials at the direction of Defendants 9 Anderson and Dunn. (ECF No. 9-1 at 1-3.) 10 While an authorized, intentional deprivation of property is actionable under the Due 11 Process Clause, neither a negligent nor intentional unauthorized deprivation of property 12 by a prison official is actionable if a meaningful, post-deprivation remedy is available for 13 the loss. Hudson v. Palmer, 468 U.S. 517, 533 (1984). An authorized deprivation is one 14 carried out pursuant to established state procedures, regulations, or statutes. See Piatt 15 v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). However, “when a prison regulation 16 impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related 17 to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). 18 Defendants contend that they confiscated Hendrix’s property pursuant to OP 19 711.02(3) and that this policy furthers a legitimate penological goal of recovering and 20 retaining State Property. (ECF No. 72 at 21.) According to Defendants, the legitimate 21 penological goal of this policy is “recovering and retaining State property,” which resulted 22 in the permissible taking of property that did not belong to Hendrix. (Id.) Because Plaintiff 23 has failed to rebut Defendants’ assertion that the basis of confiscation was a legitimate 24 penological goal, the Court grants summary judgment on this claim as to Defendants 25 Michael Anderson, Dunn, Joseph, and Scott. 26 /// 27 /// 28 /// 15 1 C. 2 In Count II, Hendrix brings claims for excessive force against Emling, Daniels, 3 Nash, Neven, and Williams, and claims for procedural due process against Emling, 4 Daniels, Nash, Neven and Williams. 5 Count II i. Claims against Emling 6 Hendrix alleges that Emling choked him to the point of slipping in and out of 7 consciousness when Hendrix was in Emling’s office for a preliminary disciplinary hearing. 8 (ECF No. 9-1 at 14.) Hendrix also alleges that during this preliminary hearing Emling 9 spoke to Hendrix’s witness on the phone but refused to let Hendrix listen to this testimony. 10 (Id. at 13.) 11 In their Motion, Defendants contend that summary judgment should be granted in 12 their favor with respect to his excessive force claim against Emling because Hendrix failed 13 to exhaust his administrative remedies. (ECF No. 72 at 17.) The failure to exhaust 14 administrative remedies is “an affirmative defense the defendant must plead and prove.” 15 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (internal quotation marks and citation 16 omitted). However, the Court is required to review the evidence in the light most favorable 17 to Plaintiff. See id. Because Hendrix claims he exhausted his administrative grievances 18 (see ECF No. 9-1 at 19) and because Defendants do not cite to any evidence indicating 19 otherwise, the Court assumes that the excessive force claim against Emling has been 20 exhausted. Defendants also argue that because the grievance filed by Hendrix does not 21 make mention of any choking (ECF No. 72-13), there is not a genuine issue of material 22 fact and Emling is entitled to summary judgment. (ECF No. 72 at 18.) The Court disagrees 23 as it is required to view the evidence in the light most favorable to Hendrix. Because 24 Hendrix alleges in his verified complaint that he was choked and Emling denies doing so 25 (ECF No. 72-30 at 4), there are triable issues of fact for a jury to decide as to whether 26 Emling choked Hendrix. The Court therefore denies summary judgment as to the 27 excessive force claim against Emling in Count II. 28 /// 16 1 Defendants also contend that because Administrative Regulation 707 affords 2 Hendrix a right to request witnesses during disciplinary hearings but not during 3 preliminary hearings, Hendrix’s procedural due process rights were not violated. (ECF 4 No. 72 at 22.) The Court agrees. It is not clear that Hendrix had a protected liberty interest 5 in calling a witness in his preliminary hearing. To the extent that Hendrix did have a 6 protected liberty interest in calling a witness at the preliminary hearing, this interest was 7 met. A prisoner is not entitled to cross-examine or confront witnesses in prison disciplinary 8 hearings. See Wolff v. McDonnell, 418 U.S. 539, 567-68 (1974). As a logical 9 consequence of this principle, it is not clearly evident that when presenting a witness in 10 11 12 13 one’s defense the prisoner must hear the witness’s testimony. The Court therefore grants summary judgment on the procedural due process claim in Count II in favor of Emling. ii. Claims against Daniels, Nash, Neven and Williams 14 Hendrix alleges that Daniels, Nash, Neven and Williams denied Plaintiff’s 15 grievances related to Emling’s excessive force and due process violations. (ECF No. 9-1 16 at 14.) Because the Court granted summary judgment in favor of Emling on the procedural 17 due process claim, it also grants summary judgment in favor of Daniels, Nash, Neven and 18 Williams as to this claim. 19 The Court construes the remaining claim against these defendants as an Eighth 20 Amendment supervisory liability claim. As stated previously, a supervisor who is informed 21 of an alleged constitutional violation, such as when reviewing an inmate’s administrative 22 grievance, may be liable if they failed to remedy the constitutional violation. See Jett, 439 23 F.3d at 1096; see also discussion supra §§ IV(b)(ii) and (iii). However, assuming these 24 defendants were on notice of the purported choking incident, they would not have been 25 able to remedy the violation, as there are no allegations or evidence of permanent, serious 26 medical issues as a result of this incident. 27 28 Therefore, the Court grants summary judgment in favor of Daniels, Nash, Neven and Williams as to the claims in Count II. 17 1 D. 2 In Count III, Hendrix brings claims for retaliation and procedural due process 3 against Potter, Neven, Foster, Daniels, and Filson. (ECF No. 9 at 18-19; ECF No. 9-1 at 4 15-17.) 5 Count III i. Claims against Potter 6 Hendrix alleges that Potter refused to let Hendrix call a witness at his disciplinary 7 hearing because Hendrix had testified before the inspector general and had caused a 8 fellow correctional officer to be suspended. (ECF No. 9 at 19-20; ECF No 9-1 at 15-16; 9 ECF No. 8 at 13-14.) 10 In support of summary judgment, Defendants introduced a form detailing the 11 disciplinary hearing, which was filled out by Potter. (ECF No. 72 at 23; ECF No. 72-2 at 12 6-9.) In this form, Potter states that Hendrix elected not to call any witnesses. (ECF No. 13 72-2 at 7.) Additionally, in the audio recording of the disciplinary hearing, Potter asked 14 Hendrix if he wished to call any witnesses, to which Hendrix responded “no.” (ECF No. 15 72-3.) However, in his verified complaint, Hendrix states that prior to the hearing, Potter 16 informed Hendrix that he had already found Hendrix guilty and that “Potter told [him] that 17 there will be no kind of witness.” (ECF No. 9-1 at 15.) Defendant does not dispute that he 18 made this statement to Hendrix. (See ECF No. 72 at 23.) Therefore, it is unclear to the 19 Court whether Hendrix’s response of “no” when asked if he wanted to call a witness was 20 genuine. As a matter of law, procedural due process is not met when the decision maker 21 is neither neutral nor detached. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. 22 Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993). Given Hendrix’s allegations 23 concerning Potter’s statements that no witnesses would be called and that Potter had 24 already found Hendrix guilty (ECF No. 9-1 at 15), there are triable issues of fact as to 25 whether Potter was neutral. Moreover, procedural due process requires that a party be 26 given an opportunity to be heard at a meaningful time and in a meaningful manner. 27 Fuentes v. Shevin, 407 U.S. 67, 80 (1972). Given Potter’s alleged statements prior to the 28 /// 18 1 hearing, there are triable issues of fact as to whether Hendrix was afforded a meaningful 2 opportunity to be heard. 3 As to Hendrix’s claim that Potter’s refusal to permit Hendrix to call a witness was 4 an act of retaliation, the Court also finds that there is a genuine issue of material fact as 5 to whether Potter actually told Hendrix he had already found him guilty. 6 7 Therefore, the Court denies summary judgment as to the claims against Potter on Count III. 8 ii. Claims against Neven, Foster, Daniels, and Filson 9 In Count III, Hendrix alleges that Neven, Foster, Daniels, and Filson denied his 10 grievances. (ECF No. 9-1 at 17; ECF No. 8 at 13.) As Defendants note in their Motion, 11 there are no allegations that these officers were present at the disciplinary hearing. (ECF 12 No. 72 at 24.) 13 The Court construes these claims as First and Fourteenth Amendment supervisory 14 liability claims against these defendants. Neven, Foster and Filson are supervisors.7 15 Because Hendrix does not claim that these Defendants authorized or directed the 16 purported due process violation, and their knowledge through the grievance process after 17 the fact would not have enabled them to prevent the alleged violation from occurring, the 18 Court grants summary judgment in favor of Defendants Neven, Foster, Daniels, and 19 Filson as to the retaliation and procedural due process claims against them in Count III. 20 E. 21 Defendants also argue in the alternative that they are entitled to qualified immunity 22 “to the extent the liability alleged by Hendrix consists of responding to his grievances and 23 claims of supervisory liability.” (ECF No. 72 at 25.) They also argue that no reasonable 24 prison official would have thought that adhering to the legitimate penological goals of 25 restoring Hendrix’s discipline and maintaining the safety and security of the prison and its 26 inmates constituted a violation of Hendrix’s constitutional rights. (Id.) Finally, Defendants 27 28 Qualified Immunity 7Because Defendant Daniels is a correctional caseworker (ECF No. 9 at 2), and not a supervisor, summary judgment is granted in his favor. 19 1 contend that because Hendrix was consistently evaluated by medical staff who 2 reasonably responded to Hendrix’s medical complaints, Defendants are entitled to 3 qualified immunity for any claims of deliberate indifference to Hendrix’s medical needs. 4 (Id.) 5 Because Defendants failed to identify why qualified immunity should apply to the 6 specific claims that the Court has permitted to proceed, the Court declines to address the 7 argument as to qualified immunity but permits Defendants leave to file a renewed motion 8 for summary judgment regarding qualified immunity as to the claims that proceed. 9 V. CONCLUSION 10 The Court notes that the parties made several arguments and cited to several 11 cases not discussed above. The Court has reviewed these arguments and cases and 12 determines that they do not warrant discussion as they do not affect the outcome of 13 Defendants’ motions. 14 15 It is therefore ordered that Defendants’ Motion for Summary Judgment (ECF No. 72) is granted in part and denied in part. 16 The Court permits the following claims to proceed: the retaliation claim against 17 Dunn in Count I; the excessive force claims against Dawson, Nelson, Scott, Trailer, and 18 Jones in Count I; the deliberate indifference claim against Maryeswar, Adams, Murphy, 19 and Aranas in Count I; the excessive force claim against Emling in Count II; the procedural 20 due process and retaliation claims against Potter in Count III. 21 The Court also permits Defendants to file a renewed motion for summary judgment 22 on the basis of qualified immunity. Defendants have twenty-one (21) days from entry of 23 this Order to file their renewed motion. 24 It is further ordered that Defendants’ Motion to Seal (ECF No. 74) is granted. 25 DATED THIS 27th day of September 2017 26 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 20

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