Hernandez v. Baker et al

Filing 175

ORDER accepting and adopting in its entirety 158 Report and Recommendation; granting 132 Motion for Summary Judgment with respect to Counts I and II and denying it with respect to Count III. Signed by Judge Miranda M. Du on 3/3/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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INGINO HERNANDEZ,

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Case No. 3:13-cv-00083-MMD-WGC
Plaintiff,

v.
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RENEE BAKER, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

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Defendants.
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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (dkt. no. 1158) (“R&R”), recommending that the Court grant

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summary judgment in favor of Defendants on all counts except for count III relating to

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Plaintiff’s Eighth Amendment use of excessive force claim. (Dkt. no. 158.) Defendants

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object to the recommendation to deny summary judgment on count III. (Dkt. no. 160.)

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Plaintiff objects to the recommendation to grant summary judgment on counts I and II.

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(Dkt. no. 168.)

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II.

BACKGROUND

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Plaintiff, who is a prisoner in the custody of the Nevada Department of

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Corrections, asserts claims arising out of his incarceration at Ely State Prison.

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Following screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to

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proceed on the following claims: denial of access to the courts and retaliation (count I);

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unconstitutional conditions of confinement, and deliberate indifference to safety and to

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serious medical conditions (count II); and use of excessive force (count III). (Dkt. no.

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10.) Defendants moved for summary judgment. (Dkt. no. 132.) The Magistrate Judge

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recommends granting summary judgment on counts I and II and denying summary

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judgment on count III against Defendants Paul Malay and Christian Rowley.1 (Dkt. no.

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158.) Defendants object to the recommendation to deny summary judgment (dkt. no.

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160) and Plaintiff objects to the recommendation to grant summary judgment (dkt. no.

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168).

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of the

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parties’ objections, the Court has engaged in a de novo review to determine whether to

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adopt Magistrate Judge Cobb’s recommendations.

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The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when “the

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movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v.

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Catrett, 477 U.S. 317, 322-23 (1986). An issue is “genuine” if there is a sufficient

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evidentiary basis on which a reasonable fact-finder could find for the nonmoving party

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and a dispute is “material” if it could affect the outcome of the suit under the governing

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law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable

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minds could differ on the material facts at issue, however, summary judgment is not

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appropriate. Nw. Motorcycle Ass’n, 18 F.3d at 1472. “The amount of evidence

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The Magistrate Judge also recommends dismissing Defendant Erik Lyons. (Dkt.
no. 158 at 2.) Lyons has since been dismissed. (Dkt. no. 162.)
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necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge

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to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp.,

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718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,

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391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views

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all facts and draws all inferences in the light most favorable to the nonmoving party.

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

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order

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to carry its burden of production, the moving party must either produce evidence

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negating an essential element of the nonmoving party’s claim or defense or show that

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the nonmoving party does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210

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F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s

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requirements, the burden shifts to the party resisting the motion to “set forth specific

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facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The

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nonmoving party “may not rely on denials in the pleadings but must produce specific

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evidence, through affidavits or admissible discovery material, to show that the dispute

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exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do

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more than simply show that there is some metaphysical doubt as to the material facts.”

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Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (citation and internal

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quotation marks omitted). “The mere existence of a scintilla of evidence in support of

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the plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252.

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IV.

DISCUSSION
Defendants’ Objections

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A.

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The Magistrate Judge recommends denying summary judgment on Plaintiff’s

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claim for excessive use of force under the Eighth Amendment, finding that a genuine

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dispute of material facts exists as to whether “force was used maliciously and

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sadistically in an effort to cause harm to Plaintiff or in a good faith effort to restore
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order.” (Dkt. no. 158 at 25.) Defendants contend that the Magistrate Judge erred by

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failing to give proper deference to Defendants’ decision to use force and by finding that

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Plaintiff met his burden in demonstrating material issues of fact exists as to whether

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Defendants acted with malicious intent. (Dkt. no. 160.) The Court disagrees.

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When a prison official stands accused of using excessive physical force in

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violation of the cruel and unusual punishment clause of the Eighth Amendment, the

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question turns on whether force was applied in a good-faith effort to maintain or restore

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discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v.

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McMillian, 503 U.S. 1, 7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).

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In determining whether the use of force was wanton and unnecessary, it is proper to

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consider factors such as the need for application of force, the relationship between the

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need and the amount of force used, the threat reasonably perceived by the responsible

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officials, and any efforts made to temper the severity of the forceful response. Id. at 7.

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Plaintiff’s excessive use of force claim is based on an incident on December 10,

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2011, where Defendants Malay and Rowley allegedly kicked, punched, twisted, bent,

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and slammed his arms in the food slot door of his cell. (Dkt. no. 11 at 19.) The only fact

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that Plaintiff and Defendant appear to agree is that Plaintiff did place his hands on the

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food slot door, but they dispute what transpired thereafter. In his declaration, Defendant

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Malay states that when he ordered Plaintiff to come and take the cup of medication that

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the nurse had placed on the food slot, Plaintiff “rushed to the food slot and stuck both

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arms out of the food slot” and he “then became physically aggressive and did attempt to

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grab the nurse.” (Dkt. no. 132-3, ¶¶ 15, 16.) Defendant Malay “stepped in front of the

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nurse and pushed both of the inmate[‘]s arms to the side door in order to protect the

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nursing staff.” (Id. at ¶ 16.) According to Malay, Plaintiff spit at him hitting his midsection

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and attempted to grab his duty belt and pull him to the food slot. (Id.) In response, Malay

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“used both hands and put the inmate in a wrist lock (goose neck) and attempted to push

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his arms back to the food slot.” (Id. at ¶ 17.) Malay states that Plaintiff continued to “spit

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and assault staff” although he “did get the inmate[‘]s arm back inside his cell.” (Id.)
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Defendant Rowley states in his declaration that Plaintiff “rushed his food slot and

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reached out and tried to assault” Malay and the nurse. (Dkt. no. 132-10, ¶ 5.) Rowley

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then “applied a gooseneck on inmate Hernandez’s right arm” and told him to put his

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arms back into his cell, and Plaintiff complied and pulled his arms back into his cell after

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which he and Malay closed the food slot without further incident. (Id. at ¶¶ 5-6.) Rowley

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did clarify that Plaintiff spit on Malay during this process and hit Malay in his midsection.

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(Id. at ¶ 5.) Apparently, both Malay and Rowley separately applied a wrist lock on

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Plaintiff, although it is not clear from their declarations whether they were doing so at

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the same time with each applying a wrist lock on one arm. Malay applied the wrist lock

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and “attempted to push [Plaintiff’s] arms back to the food slot” (dkt. no. 132-2, ¶ 17)

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while Rowley applied the wrist lock and “gave verbal commands” for Plaintiff to put his

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arms back into his cell, which he did (dkt. no 132-10, ¶ 5). In contrast, according to

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Malay, Plaintiff “continued to spit and assault staff.” (Dkt. no. 132-3, ¶ 17.)

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In his response, Plaintiff admits that he “put both arms on [sic] the slot door and

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holding it for keeping it open” but claims that Defendants attacked him. (Dkt. no. 146 at

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70.) Plaintiffs states that he was “not violent” and “did not refuse to follow officers Paul

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Malay or Christian Rowley’s instructions.” (Id.) According to Plaintiff, Defendants Malay

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and Rowley “pushed and swung, kicking and punching up and down by the same time

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bending and twisting arms by slamming the food slot door on a plaintiff[‘] arms.” (Dkt.

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no. 146 at 69.)

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The Court agrees with the Magistrate Judge that Plaintiff has met his burden in

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opposing summary judgment. Viewing all facts and drawing all inferences in the light

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most favorable to Plaintiff, a reasonable fact-finder could find that Plaintiff did not

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behave aggressively or tried to attack Defendant Malay or the nurse, and Defendants’

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use of force was therefore wanton and unnecessary. Even if Plaintiff did not

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immediately remove his arms from the slot door, a reasonable fact-finder could find that

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Defendants’ response — Defendants pushed, swung, kicked punched and bended and

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twisted his arms by slamming the food slot door on his arms — was unconstitutionally

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excessive. (Dkt. no. 146 at 69-70.)

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Defendants are correct that the courts must be deferential when reviewing the

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necessity of force. See Norwood v. Vance, 591 F.3d 1062 1066-67 (9th Cir. 2010), cert

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denied 131 S. Ct. 1465). However, whether the use of force was unconstitutionally

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excessive usually involves an issue of fact. See, e.g., Lolli v. County of Orange, 351

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F.3d 410, 415-16 (9th Cir. 2003) (citations omitted) (in an excessive force case brought

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by a pretrial detainee under the Fourth Amendment, the court stated, “summary

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judgment or judgment as a matter of law in excessive force cases should be granted

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sparingly”). The Court agrees with the Magistrate Judge that count III presents such a

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factual situation that must be submitted to the jury. Accordingly, summary judgment is

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not proper.
Plaintiff’s Objections

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B.

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Plaintiff’s lengthy objections mainly recite case law and repeats arguments he

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made in opposition to Defendant’s motion for summary judgment. Having reviewed the

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underlying briefs and the Magistrate Judge’s Recommendations, the Court agrees with

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the Magistrate Judge that summary judgment should be granted on counts I and II.

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V.

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CONCLUSION
It is therefore ordered, adjudged and

decreed that the Report and

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Recommendation of Magistrate Judge William G. Cobb (dkt. no. 158) be accepted and

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adopted in its entirety. Defendant’s motion for summary judgment (dkt. no. 132) is

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granted with respect to counts I and II and denied with respect to count III (Eighth

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Amendment use of excessive force claim).

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DATED THIS 3rd day of March 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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