Sena v. Officer Coleman CCDC et al

Filing 44

ORDER that 35 defendants' Motion for Summary Judgment is GRANTED. Signed by Judge James C. Mahan on 2/2/2018. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TERRIE L. SENA,

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Plaintiff(s),

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Case No. 2:15-CV-2066 JCM (CWH)
ORDER

v.
OFFICER COLEMAN, et al.,

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Defendant(s).

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Presently before the court is defendants corrections officer Nicole Coleman (“Coleman”) and

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corrections officer Zippora Clinkscales’s (“Clinkscales”) (collectively “defendants”) motion for

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summary judgment. (ECF No. 35). Plaintiff Terrie L. Sena (“plaintiff”) filed a response (ECF

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No. 38), to which defendants replied (ECF No. 43).

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I.

Background

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Plaintiff was a pretrial detainee in protective custody at the Clark County Detention Center

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(“CCDC”). (ECF No. 38). Plaintiff was housed in the protective custody unit in a cell with

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Christine Allen (“Allen”). Id. Plaintiff was in protective custody due to the nature of the charges

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filed against her. (ECF No. 35).

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On April 10, 2015 at around 6:30 p.m., Clinkscales was advised by the CCDC switchboard

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that plaintiff’s husband called and advised them that plaintiff told him she was being threatened

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by her cellmate. Id.

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Clinkscales and Officer Sua investigated the call and took plaintiff and her cellmate, Allen,

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out of the cell individually to interview them. Id. Allen told Clinkscales that plaintiff snored and

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as a result, Allen had told plaintiff to shut up and at times, hit the bottom of plaintiff’s bunk in an

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effort to get plaintiff to stop snoring. Id. Plaintiff corroborated Allen’s statements, but did not tell

James C. Mahan
U.S. District Judge

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Clinkscales that Allen ever threatened her. Id. When asked why she had told her husband that she

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had been threatened, plaintiff told Clinkscales that she was nervous because of the snoring

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situation. Id.

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Clinkscales advised plaintiff and Allen that when room in another cell opened up, she

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would move one of them. Id. Clinkscales did not believe Allen had made any physical threats nor

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that there had been any other issues between plaintiff and Allen apart from plaintiff’s snoring. Id.

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Further, Clinkscales was not aware of any history of violence on the part of either inmate. Id.

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On April 10, 2015, plaintiff alleges she was present when other inmates informed

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Clinkscales that plaintiff needed to be moved because Allen was planning to do something to

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plaintiff. (ECF No. 38). Plaintiff also alleges that she was present when another inmate informed

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Clinkscales of Allen’s violent history.

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unsubstantiated. (ECF No. 35).

Id.

Defendants argue these claims are entirely

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On April 11, 2015, at approximately 4:00 a.m., Clinkscales responded to screams coming

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from plaintiff’s cell. Id. Clinkscales found Allen standing in front of the door and plaintiff on the

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cell floor holding her head. Id. Plaintiff told Clinkscales that Allen had pulled her hair, kicked

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her, and hit her for no reason. Id. Allen told Clinkscales that plaintiff had started the fight by

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hitting first. Id. Both plaintiff and Allen were disciplined for their participation in the fight. Id.

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Finding no marks on Allen, Clinkscales removed her from the cell and placed her in detention. Id.

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Clinkscales notified medical after observing swelling on plaintiff’s face. Id. After being checked

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and cleared by medical personnel, plaintiff was returned to her cell. Id.

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Plaintiff alleges that prior to her meeting with Clinkscales on April 10, 2015, she

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approached Coleman with a grievance regarding issues she was having with Allen. Id. Plaintiff

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alleges the grievance indicated Allen was verbally abusing her, causing her to lose sleep, and

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beginning to hit things in the room, which made plaintiff nervous. (ECF No. 38). Plaintiff alleges

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she handed the grievance to Coleman who read the grievance and then returned it back to plaintiff.

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(ECF No. 35). Coleman has no recollection of receiving or reading a grievance from plaintiff that

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day, but Coleman receives grievances on a daily basis. Id.

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James C. Mahan
U.S. District Judge

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It was very common for her to review inmate grievances and then to respond appropriately.

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Id. Coleman receives many requests to change cells and part of her job is to evaluate whether a

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move is warranted. Id. Coleman approves such moves if the inmate has been physically abused

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or threatened with physical violence. Id.

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Coleman was not aware of any issues between plaintiff and Allen, nor was she aware of

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any history on Allen’s part of attacking other inmates. Id. In fact, both Coleman and Clinkscales

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had been on duty in the unit where plaintiff housed for the duration of plaintiff’s incarceration. Id.

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Legal Standard

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

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as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to isolate

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and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–

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24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the non-moving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, the court applies a burden-shifting analysis. “When

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the party moving for summary judgment would bear the burden of proof at trial, it must come

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480

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(9th Cir. 2000). Moreover, “[i]n such a case, the moving party has the initial burden of establishing

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the absence of a genuine issue of fact on each issue material to its case.” Id.

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By contrast, when the non-moving party bears the burden of proving the claim or defense,

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the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the non-moving party’s case; or (2) by demonstrating that the non-moving party failed

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to make a showing sufficient to establish an element essential to that party’s case on which that

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U.S. District Judge

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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630 (9th Cir. 1987).

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The Ninth Circuit has held that information contained in an inadmissible form may still be

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considered for summary judgment if the information itself would be admissible at trial. Fraser v.

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Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410,

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418-19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily have to

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produce evidence in a form that would be admissible at trial, as long as the party satisfies the

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requirements of Federal Rules of Civil Procedure 56.”)).

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II.

Discussion

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Plaintiff’s 42 U.S.C. § 1983 complaint alleges her constitutional rights were violated while

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she was a pretrial detainee in the CCDC. (ECF No. 38). Count one (1) alleges Coleman violated

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plaintiff’s Fourteenth and Eighth Amendment rights by intercepting and rejecting the submission

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of her grievance as to alleged assaults by her cellmate and her request to move cells. Id. Plaintiff

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alleges defendants were aware of her cellmate’s violent tendencies and prior instances of violence

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with other inmates. Id. Further, plaintiff alleges that informing plaintiff’s cellmate of plaintiff’s

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complaint and then putting plaintiff back in her cell resulted in her attack. Id.

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Count two (2) of plaintiff’s complaint alleges Coleman violated plaintiff’s First

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Amendment rights by intercepting and rejecting her grievance and request to change cells. Id.

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James C. Mahan
U.S. District Judge

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Plaintiff alleges Clinkscales’s failure to report plaintiff’s safety concern to her superiors also

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violated plaintiff’s First Amendment rights. Id.

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Because both defendants are entitled to qualified immunity, an analysis as to whether their
conduct was constitutional is not necessary.
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Individual liability under 42 U.S.C. § 1983

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When a plaintiff brings a claim under 42 U.S.C. § 1983, government officials sued in their

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individual capacities may raise the affirmative defense of qualified immunity. See Spoklie v.

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Montana, 411 F.3d 1051, 1060 (9th Cir. 2005). “Qualified immunity balances two important

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intereststhe need to hold public officials accountable when they exercise power irresponsibly

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and the need to shield officials from harassment, distraction, and liability when they perform their

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duties reasonably.”

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immunity attaches when an official’s conduct ‘does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.’” White v. Pauly, 137 S.

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Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).

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Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Indeed, “[q]ualified

The doctrine protects government officials performing discretionary functions from

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liability for civil damages as long as their conduct does not violate “clearly established statutory

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or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

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457 U.S. 800, 818 (1982). “The principles of qualified immunity shield an officer from personal

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liability when an officer reasonably believes that his or her conduct complies with the law.”

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Pearson, 555 U.S. at 244. Qualified immunity may apply even if the defendant makes a mistake

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of law or acts based upon a mistake of fact. Id. at 231.

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Deciding whether an official is entitled to qualified immunity is a two-step inquiry. Id. at

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232. First, the court assesses whether the plaintiff has alleged or shown a violation of a

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constitutional right. Id. Second, the court decides whether the right at issue was clearly

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established at the time of the defendant’s alleged misconduct. Id. The Supreme Court has

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instructed that district judges may use their discretion when deciding which qualified immunity

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prong to address first, based upon the circumstances of the case at issue. See id. at 236.

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James C. Mahan
U.S. District Judge

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The second prong of the qualified immunity test requires a court to determine whether the

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right plaintiff claims was violated was “clearly established.” See id. “[T]he right the official is

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alleged to have violated must have been ‘clearly established’ in a more particularized, and hence

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more relevant, sense: [t]he contours of the right must be sufficiently clear that a reasonable

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official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S.

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194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The dispositive

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question is “whether it would be clear to a reasonable officer that his conduct was unlawful in

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the situation he confronted.” Id.

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Further, “clearly established law” may “not be defined ‘at a high level of generality.’”

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White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742

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(2011)).1 Indeed, “[w]ithout that ‘fair notice,’ an officer is entitled to qualified immunity.” City

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& Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1777 (2015).

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To be clear, “[w]here the defendant raises the affirmative defense of qualified immunity,

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the initial burden is upon the plaintiff to show that the rights were clearly established, after which

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the defendant bears the burden of proving that his conduct was reasonable.” Shoshone-Bannock

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Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1285 (9th Cir. 1994) (citing Romero v.

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Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991)); see also Miller v. Monroe Sch. Dist., 159 F.

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Supp. 3d 1238, 1248 (W.D. Wash. 2016) (citing LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th

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Cir. 2000)).

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Here, defendants have asserted qualified immunity; therefore, plaintiff must demonstrate

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that her rights were “clearly established” within the “particularized” factual context of the

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encounter. See White, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 640); Shoshone-Bannock

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Tribes, 42 F.3d at 1285.

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Plaintiff argues that at the time of the incident, it was established law that deliberate

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indifference to an inmate’s health and safety and/or failing to take reasonable steps to protect an

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inmate from violence by another inmate was a violation of the Eighth and Fourteenth

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The Court, in al-Kidd, explicitly noted that it “ha[d] repeatedly told courts—and the
Ninth Circuit in particular—not to define clearly established law at a high level of generality.”
563 U.S. 731, 742 (2011) (citation omitted).
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U.S. District Judge

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Amendments of the U.S. Constitution. (ECF No. 38). Plaintiff argues a reasonable official

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would have known that disregarding a protective inmate’s grievance expressing concern for her

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health and safety was a violation of the Eighth and Fourteenth Amendments. (ECF No 38).

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Plaintiff further argues that sharing a protective custody inmate’s complaint about her

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cellmate and then placing her back in the cell with the same cellmate would likely result in

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violence to plaintiff, thus violating her Eighth and Fourteenth Amendment rights. Plaintiff’s

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underscoring of her protective custody status is irrelevant. She was housed in a protective

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custody unit. Both she and her cellmate were protective custody inmates.

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Defendants argue, and the court agrees, that it was not evident to “every reasonable

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official” that the actions of defendants violated plaintiff’s Eighth and Fourteenth Amendments.

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Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). If it is merely arguable that the defendants’

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actions were within the law, then qualified immunity applies. Id.

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Here, defendants handled the situation in a reasonable manner based on the information

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available to them at the time. See Pearson, 555 U.S. at 231. Neither officer perceived there to

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be a threat to the physical safety of plaintiff. Further, when plaintiff was given an opportunity to

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convey the situation within her cell and the purported impending physical harm she feared at the

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hands of Allen, she chose not to. Instead, plaintiff vaguely reiterated the dispute over the snoring

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situation. In fact, interviewing Allen about the situation evinces concern for plaintiff’s health and

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safety. Defendants were not deliberately indifferent to plaintiff’s grievance or the call from her

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husband; they investigated to determine the appropriate response. Because defendants did not

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perceive a risk of physical harm to plaintiff, it was reasonable for defendants to return her to her

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cell with Allen. Further, it was not clearly established that doing so would violate plaintiff’s

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constitutional rights. White, 137 S. Ct. at 552.

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Double-celling is not unconstitutional. Rhodes v. Chapman 452 U.S. 337, 348 (1981);

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Hammonds v. Martel, 361 Fed. Appx. 813 (9th Cir. 2009). Based on what defendants knew,

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returning plaintiff to her cell did not violate clearly established constitutional rights of which a

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reasonable officer would have known. White, 137 S. Ct. at 551. While plaintiff contends other

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inmates informed Clinkscales of Allen’s purported violent propensity, the only evidence in

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U.S. District Judge

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support of this is plaintiff’s hearsay statement. Even so, qualified immunity applies when the

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defendant makes a decision based on a mistake of fact. Pearson, 555 U.S. at 231.
Clinkscales stated she received requests to change cells on a daily basis. Absent clear risk

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of physical harm, it was impossible for to accommodate every request. Accordingly, it was

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entirely reasonable, based on her understanding of the situation, for Clinkscales to deny

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plaintiff’s request. Plaintiff presents no evidence “that the defendant officers knew and

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understood that by leaving the inmates together they were exposing plaintiff Sena to a substantial

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risk of serious harm.” (ECF No. 35). Nothing in plaintiff’s complaint convinces the court that

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defendants’ actions violated a clearly established law in returning plaintiff to her cell. Pearson,

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555 U.S. at 232. Accordingly, Clinkscales and Coleman are entitled to qualified immunity.
Plaintiff has not succeeded in her initial burden of showing—with specific attention to

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the facts of this case—that the plaintiff’s allegedly violated rights were clearly established. See

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White, 137 S. Ct. at 552; LSO, Ltd., 205 F.3d at 1157.

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III.

Conclusion

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In sum, defendants’ motion for summary judgment will be granted as to claims one and

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three of plaintiff’s complaint—those brought pursuant to § 1983. Defendants’ actions were

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objectively reasonable given the situation and the information available to them. Additionally, a

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violation of plaintiff’s rights was not clearly established.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDED, AND DECREED that defendants’ motion for

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summary judgment (ECF No. 35) be, and the same hereby is, GRANTED.
DATED February 2, 2018.
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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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