Ashcroft v. Clugston et al
Filing
107
OPINION & ORDER: Defendant Hartman's Motion for Summary Judgment 84 is Denied. Signed on 11/25/14 by Magistrate Judge Dennis J. Hubel. (gm)
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UNITED STATES DISTRICT COURT
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DISTRICT OF OREGON
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PORTLAND DIVISION
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DOUGLAS ALLEN ASHCROFT,
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Plaintiff,
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No. 02:12-cv-02275-HU
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vs.
)
)
JERIAL HARTMAN, in his Personal/
)
OPINION AND ORDER ON
Individual Capacity,
) MOTION FOR SUMMARY JUDGMENT
)
Defendant.
)
_____________________________
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13
14 Douglas Allen Ashcroft
Umatilla County Jail
15 4700 NW Pioneer Place
Pendleton, OR 97801
16
Plaintiff appearing pro se
17
18
19 Ellen F. Rosenblum
Attorney General
20 Andrew D. Hallman
Assistant Attorney General
21 Department of Justice
1162 Court Street, NE
22 Salem, OR 97301-4096
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Attorneys for Defendant
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1 - OPINION AND ORDER
1 HUBEL, Magistrate Judge:
2
The plaintiff Douglas Allen Ashcroft brings this civil rights
3 action against the defendant Jerial Hartman, a Correctional Officer
4 with the Oregon Department of Corrections (“ODOC”), in Hartman’s
5 individual capacity (i.e., not in his official capacity). Ashcroft
6 alleges Hartman used excessive or unnecessary force against him in
7 an incident that occurred on August 31, 2011.
Ashcroft, appearing
8 pro se, asserts two claims against Hartman: (1) a claim pursuant to
9 42 U.S.C. § 1983, for “cruel and unusual punishment in violation of
10 the Eighth Amendment and Fourteenth Amendment of the United States
11 Constitution”; and (2) an Oregon common-law claim for assault and
12 battery.
13 and
See Dkt. #54.
punitive
damages
He seeks compensatory damages of $25,000,
consisting
of
a
“$10,000.00
14 Hartman’s dismissal from his job with the ODOC.
15
fine,”
and
Id., p. 6.
The case is before the court on Hartman’s motion for summary
16 judgment, Dkt. #84. The motion is fully briefed, and neither party
17 has requested oral argument.
18 diction
and
the
entry
of
The parties have consented to jurisfinal
judgment
by
a
United
States
19 Magistrate Judge, in accordance with Federal Rule of Civil Proce20 dure 73(b).
21
I. SUMMARY JUDGMENT STANDARDS
22
23
Summary judgment should be granted “if the movant shows that
24 there is no genuine dispute as to any material fact and the movant
25 is entitled to judgment as a matter of law.”
26 56(c)(2).
Fed. R. Civ. P.
In considering a motion for summary judgment, the court
27 “must not weigh the evidence or determine the truth of the matter
28 but only determine whether there is a genuine issue for trial.”
2 - OPINION AND ORDER
1 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002)
2 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th
3 Cir. 1996)).
4
The Ninth Circuit Court of Appeals has described “the shifting
5 burden of proof governing motions for summary judgment” as follows:
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The moving party initially bears the burden of
proving the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). Where the non-moving party bears
the burden of proof at trial, the moving party
need only prove that there is an absence of
evidence to support the non-moving party’s
case. Id. at 325, 106 S. Ct. 2548. Where the
moving party meets that burden, the burden
then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial.
Id. at
324, 106 S. Ct. 2548. This burden is not a
light one.
The non-moving party must show
more than the mere existence of a scintilla of
evidence.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). The non-moving party must do
more than show there is some “metaphysical
doubt” as to the material facts at issue.
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L. Ed. 2d 528 (1986). In fact, the
non-moving party must come forth with evidence
from which a jury could reasonably render a
verdict in the non-moving party’s favor.
Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In
determining whether a jury could reasonably
render a verdict in the non-moving party’s
favor, all justifiable inferences are to be
drawn in its favor. Id. at 255, 106 S. Ct.
2505.
23 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th
24 Cir. 2010).
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II. SECTION 1983 STANDARDS GENERALLY
Section 1983 provides, in relevant part, that “[e]very person
28 who, under color of any statute, ordinance, regulation, custom, or
3 - OPINION AND ORDER
1 usage, of any State . . . subjects, or causes to be subjected, any
2 citizen of the United States or other person within the jurisdic3 tion thereof to the deprivation of any rights, privileges, or
4 immunities secured by the Constitution and laws, shall be liable to
5 the party injured in an action at law, suit in equity, or other
6 proper proceeding for redress.”
7
42 U.S.C. § 1983.
To establish an individual defendant’s personal liability in
8 an action under 42 U.S.C. § 1983, the plaintiff must show that the
9 defendant, “acting under color of state law, caused the deprivation
10 of a federal right.”
Kentucky v. Graham, 473 U.S. 159, 166, 105
11 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (citation omitted).
12 Section 1983 “is not itself a source of substantive rights, but
13 merely provides a method for vindicating federal rights elsewhere
14 conferred.
The first step in any such claim is to identify the
15 specific constitutional right allegedly infringed.”
Albright v.
16 Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811-812, 127 L. Ed. 2d
17 114 (1994) (internal citations and quotation marks omitted).
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III. STANDARDS FOR EXCESSIVE FORCE CLAIMS
“When prison officials use excessive force against prisoners,
21 they violate the inmates’ Eighth Amendment right to be free from
22 cruel and unusual punishment[.]”
23 903 (9th Cir. 2002).
Clement v. Gomez, 298 F.3d 898,
However, the use of force does not constitute
24 an Eighth Amendment violation when it is “applied in a good faith
25 effort to maintain or restore discipline [rather than] maliciously
26 and sadistically for the very purpose of causing harm.” Whitley v.
27 Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 1085, 89 L. Ed. 2d
28 251 (1986) (citation omitted).
4 - OPINION AND ORDER
Factors relevant to the court’s
1 analysis include (1) “the need for the application of force”;
2 (2) “the relationship between the need and the amount of force that
3 was used”; (3) “the extent of injury inflicted”; (4) “the extent of
4 the threat to the safety of staff and inmates, as reasonably per5 ceived by the responsible officials on the basis of the facts known
6 to them”; and (5) “any efforts made to temper the severity of a
7 forceful response.”
Whitley, 475 U.S. at 21, 106 S. Ct. at 1085
8 (citations omitted). The Whitley Court observed that consideration
9 of the first three factors may lead to “inferences . . . as to
10 whether the use of force could plausibly have been thought neces11 sary, or instead evinced such wantonness with respect to the
12 unjustified infliction of harm as is tantamount to a knowing
13 willingness that it occur.”
Id. (citations omitted).
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IV. BACKGROUND FACTS
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On August 31, 2011, Ashcroft was incarcerated at the Snake
17 River Correctional Institution, a state prison located in Ontario,
18 Oregon.
Hartman was employed at the prison as a Correctional
19 Officer.
On the day in question, Hartman was supervising inmates
20 in Unit E of the prison’s Intensive Management Unit (“IMU-E”).
At
21 about 8:00 a.m., Hartman escorted Ashcroft to the IMU-E recreation
22 yard.
When inmates in the IMU are escorted from place to place,
23 they are in restraints, usually metal handcuffs.
Some doors,
24 including the doors to the inmates’ cells and the door to the
25 recreation area, contain a “cuff port” - an opening through which
26 an inmate can be placed in restraints prior to leaving the area.
27 The usual procedure is for an inmate to back up to the “cuff port,”
28 put his hands together, and reach through so the restraints can be
5 - OPINION AND ORDER
1 applied.
The inmate then steps forward, away from the door; the
2 officer steps back, and signals the control center to open the
3 door; the door is opened; and the inmate backs out of the door,
4 where he is patted down for contraband.
Then the inmate is
5 escorted to his destination.
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Hartman returned to escort Ashcroft back to his cell at about
7 8:45 a.m.
The way Ashcroft relates the facts, he noticed Hartman
8 standing on the other side of the door to the recreation yard, with
9 his back turned.
Ashcroft “reached out of the cuff-port door
10 touching [Hartman’s] wrist/hand just to get his attention, in a
11 non-aggressive manner.”
Ashcroft informed Hartman that he was
12 ready, and then “turned around and stuck his hand’s [sic] out of
13 the cuff port and submitted to restraint’s [sic].”
According to
14 Ashcroft, the following events ensued:
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[Hartman][,] upset and aggravated about something including [Ashcroft’s] playful touch,
waited until the recreation yard door opened
[and] then with extreme force and his body
slammed [Ashcroft] up against the wall inside
the recreation yard.
At this point still
pinning [Ashcroft] against the wall [Hartman]
told [Ashcroft], “don’t ever touch me again
punk”. After that [Hartman] then with force
again turned [Ashcroft] around without giving
a direct order and began pushing [Ashcroft]
while still grabbing a hold [sic] of the handcuff’s [sic] toward the exit door of the IMU-E
recreation yard.
It was at this point
[Ashcroft] asked [Hartman] what are you doing
this for.
At this point [Hartman] rammed
[Ashcroft’s] face against the exiting doorway
of the IMU-E recreation yard.
[Ashcroft’s]
nose and lip were split and swollen, bleeding
et cetera.
25
26 Amended Complaint, Dkt. #54, ¶ 9.
27
Ashcroft claims Hartman’s use of force was done “without need
28 or provocation,” and continued until Ashcroft “suffered physical
6 - OPINION AND ORDER
1 injury[.]”
He
claims
2 malicious, and sadistic.
Hartman’s
use
of
force
was
excessive,
He alleges he suffered “a large bump on
3 [his] head due to the initial ramming into the wall,” and after his
4 face was rammed into the door, he “was unable to chew or move [his]
5 mouth without pain for several day’s [sic].”
6 #96, pp. 3-4.
MSJ Response, Dkt.
Ashcroft further claims his arms were scraped when
7 Hartman pulled on Ashcroft’s arms, scraping them on the cuff port.
8 Id., p. 4.
Ashcroft has submitted nursing progress notes from
9 9:30 a.m. on the day in question that document dried blood in his
10 right nostril, a swollen nose, and a split and swollen upper lip,
11 with no loose teeth or cuts inside his mouth.
An officer, referred
12 to as “Sgt. Brown” in the progress notes, reported that Ashcroft
13 “would not comply [and] was put against the wall.”
Dkt. #55, p. 5.
14 Ashcroft also has submitted declarations from two inmates who claim
15 to have seen Ashcroft being escorted to the infirmary.
Both
16 inmates indicate they observed that Ashcroft’s nose and mouth were
17 bloody.
18
Dkt. #97-1, pp. 3 & 5.
Ashcroft further claims Hartman bragged to other inmates about
19 assaulting him.
He has submitted three declarations from inmates
20 who claim to have talked with Hartman about the incident.
Lee
21 Gordon Lamb indicates Hartman told him, “[Y]eah I beat Ashcrofts’
22 [sic] ass for getting mouthy with me.”
Id., p. 1.
Wayne Kilgore
23 indicates he asked Hartman what happened to Ashcroft, and Hartman
24 replied, “I slammed his punk ass against the wall and doorkey”;
25 “that punk touched me.”
Id., p. 3.
Jack James Hasbrouck states he
26 overheard Ashcroft telling Sgt. Brown he had been assaulted by
27 Hartman. Hasbrouck claims he asked Hartman about the incident, and
28 Hartman replied that Ashcroft “had it coming.”
7 - OPINION AND ORDER
Id., p. 5.
1
Hartman denies having a conversation with Lamb, Kilgore, or
2 Hasbrouck about the incident.
Not surprisingly, Hartman tells a
3 very different story of the events:
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I opened the cuffport to the recreation
yard. Inmate Ashcroft backed up and appeared
to submit to restraints under the normal procedure. Inmate Ashcroft should have kept his
hands together until restraints could be applied.
He did not follow that procedure.
Instead, he reached through the cuffport and
grabbed my right wrist. I immediately pulled
away. I then ordered Inmate Ashcroft to back
up and submit to restraints.
Inmate Ashcroft then stepped forward away
from the recreation yard door, and I signaled
the control center to open the recreation yard
door by waiving [sic] my arm. The recreation
yard door then opened, and I had to hold the
recreation yard door open so it would not slam
shut.
Once the recreation yard door opened,
Inmate Ashcroft charged at me while in
restraints. I grabbed Inmate Ashcroft by his
upper arm and turned him around, placing him
facing forward against the wall of the outside
recreation yard. I did this while holding the
recreation yard door, and Inmate Ashcroft did
not make it out of the recreation yard.
When I grabbed Inmate Ashcroft, I made a
statement to the effect of, “Don’t ever reach
through the cuffport and grab my wrist again
and when you leave the recreation yard, you
are supposed to back out.”
Inmate Ashcroft
replied with, “Why don’t you do something
about it, you punk bitch.” I do not recall
any additional comments made by either Inmate
Ashcroft or myself, although it is possible
that something else was said.
22 Hartman Decl., Dkt. #85, ¶¶ 10-13.
23
Hartman claims he did not observe any injuries to Ashcroft or
24 any bleeding.
He indicates that if there had been noticeable
25 injuries or bleeding, Ashcroft would have been taken for medical
26 treatment immediately.
Hartman further claims that about twenty
27 minutes after Ashcroft was returned to his cell, Ashcroft began
28 yelling and throwing objects from his cell, including throwing a
8 - OPINION AND ORDER
1 drinking cup that hit Hartman in the chest.
Hartman issued
2 Ashcroft a misconduct report for violating three Inmate Prohibited
3 Conduct Rules; i.e., Staff Assault, Disrespect I, and Disobedience
4 of an Order I.
5
Id., ¶¶ 14, 17, 18, & 23.
Hartman argues he “used the minimum force necessary to gain
6 control of Inmate Ashcroft after he charged at [Hartman] and
7 Officer Ellestad while in handcuffs.
That force was very minimal,
8 and [Hartman] did not observe any injuries to Inmate Ashcroft as a
9 result of that force.”
Id., ¶ 3.
Hartman has submitted the
10 declaration of Officer Brian Ellestad in support of his version of
11 the events.
See Dkt. #86.
Ellestad could not see what happened at
12 the cuff port, but he heard Hartman give a second order to Ashcroft
13 “to back up and submit to restraints.”
According to Ellestad, it
14 was unusual for an officer to have to give a second such order, and
15 it alerted him to a possible problem with Ashcroft, although he
16 estimates “less than a minute elapsed between Officer Hartman’s
17 initial order to submit to restraints and Inmate Ashcroft being
18 placed in restraints.”
Id., ¶¶ 10 & 11.
Ellestad indicates that
19 once the recreation yard door was open, “Ashcroft turned and rushed
20 towards [Hartman and Ellestad], face first. . . .
21 moving quickly toward us.
The intent of his rush was unclear,
22 given that he was in restraints.”
23
Ashcroft was
Id., ¶ 13.
In Ellestad’s version of events, Hartman grabbed Ashcroft’s
24 upper biceps, and “placed him face-first against the recreation
25 yard door, standing behind [Ashcroft].”
Id., ¶ 14.
Ellestad
26 indicates he, himself, “restrained Inmate Ashcroft on his right
27 side,” placing Ashcroft under the officers’ control.
28 Ellestad
heard
Hartman
9 - OPINION AND ORDER
giving
Ashcroft
orders,
and
Id., ¶ 15.
he
heard
1 Ashcroft shouting in response, but he does not recall what Ashcroft
2 said.
In Ellestad’s opinion, Hartman “used the minimum force
3 necessary to gain control of Inmate Ashcroft after he charged at us
4 while in handcuffs.
That force was very minimal, and I did not
5 observe any injuries to Inmate Ashcroft as a result of that force.”
6 Id., ¶ 3.
7
Ellestad further indicates that after Ashcroft was returned to
8 his
cell,
he
was
provided
with
cleaning
items
for
9 including “a dustpan, broom, spray bottle, and rags.”
his
cell
Id., ¶ 20.
10 A short time later, Ashcroft began “yelling and throwing items out
11 of his cuff port, such as his dust pan, broom, and drinking cup.”
12 Id., ¶ 21.
Ellestad looked into Ashcroft’s cell, and observed a
13 broken broom, “blood spattered on the inside of [Ashcroft’s] cell
14 window,” and “cuts on Inmate Ashcroft’s forearm.” Id., ¶ 22.
15 Ellestad speculates that Ashcroft “cut[] himself with the broken
16 broom,” and “then spit the blood on to his cell window.” Id.
17 Ashcroft was placed in restraints, and three officers escorted
18 Ashcroft to “special housing intake” for evaluation by medical
19 staff.
20
Id., ¶ 23.
Ellestad videotaped Ashcroft’s escort for medical attention,
21 and the court has reviewed the videotape, Dkt. #86-1, Attachment 2.
22 After Ashcroft arrived in the special housing intake area, an
23 officer asked Ashcroft, at 07:24 on the video, “What’s going on?”
24 Ashcroft responded, “I got slammed against the wall by one of your
25 officers.”
The same officer asked, “Did you not grab his arm?” and
26 Ashcroft responded, “I did not touch that man at all.”
In addi-
27 tion, the videotape rebuts Hasbrouck’s claim that he heard Ashcroft
28 telling Sgt.
Brown
“that
10 - OPINION AND ORDER
he
was
assaulted
by
Officer
Jerial
1 Hartman.”
Dkt.
#97-1,
p.
5.
During
the
entire
trip
from
2 Ashcroft’s cell to intake, Ashcroft made no such statement.
3
Ashcroft pursued a grievance against Hartman through the
4 prison’s administrative process.
After exhausting his administra-
5 tive remedies without obtaining relief, Ashcroft filed this action.
6
7
V. DISCUSSION
8
A. Eighth Amendment Claim
9
With regard to Ashcroft’s Eighth Amendment claim, Hartman
10 argues he responded appropriately to what he reasonably perceived
11 to be a threat; that is, Hartman claims Ashcroft “grabbed” him by
12 the wrist.
Further, he argues his use of force was minimal,
13 asserting “Ashcroft was not punched, kicked, or taken to the
14 ground,” and he simply was returned to his cell.
Hartman argues
15 that even if Ashcroft suffered the injuries he claims, those
16 injuries were de minimis and do not rise to the level of a consti17 tutional violation. Dkt. #84, pp. 6-7. Hartman cites, inter alia,
18 Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 1178, 175
19 L. Ed. 2d 995 (2010), where the Supreme Court observed that “not
20 every malevolent touch by a prison guard gives rise to a federal
21 cause of action.”
Id. (internal quotation marks, citation omit-
22 ted).
23
However, in Wilkins, the Supreme Court explained it is not
24 necessary for an inmate to suffer a serious injury in order to
25 sustain an Eighth Amendment challenge:
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“When prison officials maliciously and sadistically use force to cause harm, . . .
contemporary standards of decency always are
violated . . . whether or not significant
injury is evident.
Otherwise, the Eighth
11 - OPINION AND ORDER
1
Amendment
would
permit
any
physical
punishment, no matter how diabolic or inhuman,
inflicting less than some arbitrary quantity
of injury.” Hudson [v. McMillian], 503 U.S.
[1,] 9, 112 S. Ct. 995[, 1000, 117 L. Ed. 2d
156 (1992)]; see also id., at 13-14, 112
S. Ct. [at 1002] (Blackmun, J., concurring in
judgment) (“The Court today appropriately puts
to rest a seriously misguided view that pain
inflicted by an excessive use of force is
actionable under the Eighth Amendment only
when coupled with ‘significant injury,’ e.g.,
injury that requires medical attention or
leaves permanent marks”).
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6
7
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This is not to say that the “absence of
serious injury” is irrelevant to the Eighth
Amendment inquiry. Id. at 7, 112 S. Ct. [at
999]. “[T]he extent of injury suffered by an
inmate is one factor that may suggest ‘whether
the use of force could plausibly have been
thought necessary’ in a particular situation.”
Ibid. (quoting Whitley [v. Albers], 475 U.S.
[312,] 321, 106 S. Ct. 1078[, 1085, 89 L. Ed.
2d 251 (1986)]).
The extent of injury may
also provide some indication of the amount of
force applied.
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15 Wilkins, 559 U.S. at 37, 130 S. Ct. at 1178.
16
The Wilkins Court further held that “[t]he Eighth Amendment’s
17 prohibition of ‘cruel and unusual’ punishments necessarily excludes
18 from constitutional recognition de minimis uses of physical force,
19 provided that the use of force is not of a sort repugnant to the
20 conscience of mankind.”
Id. at 38, 130 S. Ct. at 1178 (citation
21 omitted). Thus, for example, the Court noted an inmate’s complaint
22 of a push-and-shove incident “that causes no discernible injury
23 almost certainly fails to state a valid excessive force claim.”
24 Id. (citation omitted).
Nevertheless, the Court observed that
25 “[i]njury and force . . . are only imperfectly correlated, and it
26 is
the
latter
that
ultimately
counts.
An
inmate
who
is
27 gratuitously beaten by guards does not lose his ability to pursue
28 an excessive force claim merely because he has the good fortune to
12 - OPINION AND ORDER
1 escape without serious injury.”
Id., 559 U.S. at 38, 130 S. Ct. at
2 1178-79.
3
In the present case, Ashcroft claims Hartman gratuitously
4 slammed him into a wall, causing a large bump on his head; slammed
5 his face into a doorway, causing a swollen nose, a split lip, and
6 pain that gave Ashcroft difficulty chewing and moving his mouth for
7 several days; and grabbed Ashcroft by his arms, scraping them
8 against the cuff port, causing abrasions on his arms.
Ashcroft
9 further claims Hartman bragged to other inmates about how he had
10 beaten Ashcroft up for “getting mouthy” with him.
11
Hartman cites several cases, some from this court, in support
12 of his claim that Ashcroft’s injuries were de minimis.
13 #84, p. 7.
See Dkt.
If the facts clearly indicated Hartman’s use of force
14 was reasonable and necessary, and represented a good-faith effort
15 to maintain discipline, then the de minimis nature of Ashcroft’s
16 injuries might carry the day. However, viewing the evidence in the
17 light most favorable to Ashcroft, the court finds Ashcroft has
18 “raised a triable dispute as to whether [Hartman] maliciously and
19 sadistically used force against him.”
Dennis v. Nevada, 579 Fed.
20 Appx. 597, 598 (9th Cir. June 18, 2014) (reversing grant of summary
21 judgment to defendants; relying on Wilkins).
See, e.g., Rocheleau
22 v. Hearn, slip op., 2013 WL 3526758 (D. Or. July 11, 2013) (Brown,
23 J.)
(denying
summary
judgment
on
similar
grounds,
holding
24 “Plaintiff has established a genuine dispute of material fact
25 exists as to the degree of force used by Defendant and as to
26 whether Defendant applied force maliciously or sadistically to
27 cause
harm
rather
than
28 discipline”).
13 - OPINION AND ORDER
in
a
good-faith
effort
to
restore
1
The court is troubled by inconsistencies in the facts as
2 evidenced by the videotape.
Ashcroft alleges he merely touched
3 Hartman’s wrist; Hartman claims Ashcroft grabbed him by the wrist;
4 but on the videotape, Ashcroft claims not to have touched Hartman
5 at all.
Also, Hasbrouck swears he heard Ashcroft telling Sgt.
6 Brown he had been assaulted by Hartman, but the video shows
7 Ashcroft made no such statement at any time during his transport
8 for medical attention. Nevertheless, as noted above, it is not the
9 court’s function, at the summary judgment stage, to “weigh the
10 evidence or determine the truth of the matter but only [to]
11 determine whether there is a genuine issue for trial.”
12 Enters., 279 F.3d at 800.
Playboy
The court finds Ashcroft has presented
13 enough evidence in support of his allegations to avoid summary
14 judgment.
15
B. State-Law Claims
16
17
Hartman argues Ashcroft’s state-law assault and battery claims
18 are barred by the Eleventh Amendment.
According to Hartman, the
19 State of Oregon must be substituted as defendant with regard to the
20 state-law claims because, in Oregon, “‘the sole cause of action for
21 any tort of officers, employees or agents of a public body acting
22 within the scope of their employment or duties . . . shall be an
23 action against the public body only.’” Dkt. #84, p. 9 (quoting ORS
24 § 30.265(1)).
Hartman further reasons that once substituted, the
25 State of Oregon must be dismissed because of its immunity from suit
26 under the Eleventh Amendment.
27
Hartman’s Eleventh Amendment argument relies on the assertion
28 that Ashcroft is suing Hartman his official capacity.
14 - OPINION AND ORDER
That is not
1 the case; Ashcroft expressly states he is suing Hartman only in his
2 individual capacity.
As a result, the court finds Ashcroft’s
3 state-law claims are not barred by the Eleventh Amendment.
See
4 Rocheleau, 2013 WL 3526758, at *3 (same).
5
VI.
6
7
CONCLUSION
For the reasons discussed above, Hartman’s motion for summary
8 judgment (Dkt. #84) is denied.
9
IT IS SO ORDERED.
10
Dated this 25th day of November, 2014.
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/s/ Dennis James Hubel_________________
Dennis James Hubel
Unites States Magistrate Judge
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15 - OPINION AND ORDER
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