Roshone v. Harrison et al
Filing
74
Opinion and Order: The Court GRANTS Defendants' Motion 55 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 07/01/2016 by Judge Anna J. Brown. See attached 32 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDREW PAUL ROSHONE,
Plaintiff,
v.
HARRISON; HICKEY; BROOKS;
COLLETTE PETERS; M. GOWER;
S. SHELTON; J. RUSSELL;
L. WILLIAMSON; MARK NOOTH;
V. RODRIGUEZ; J. MORDHORST;
K. NEFF; N. JOHNSON;
R. WHITE; G. GULICK;
DR. PETERSON; POWELSON;
HUGHES; BUGHER; and JASON
BELL,
Defendants.
ANDREW PAUL ROSHONE
1995 Amazon Parkway
Eugene, OR 97404
Plaintiff, Pro Se
1 - OPINION AND ORDER
2:14-CV-01576-BR
OPINION AND ORDER
ELLEN F. ROSENBLUM
Attorney General
VANESSA A. NORDYKE
Senior Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301-4096
(503) 947-4700
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants' Motion
(#55) for Summary Judgment.
For the reasons that follow, the
Court GRANTS Defendants' Motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint and
the parties materials related to Defendants' Motion for Summary
Judgment and are viewed in the light most favorable to Plaintiff.
At all relevant times Plaintiff Andrew Paul Roshone was an
inmate at Snake River Correctional Institution (SRCI).
On August 26, 2013, Defendant Corrections Officer Kraig
Brooks was delivering supplies to inmates housed in the Intensive
Management Unit (IMU) of SRCI.
When Officer Brooks reached
Plaintiff's cell, he dropped the cuff port 1 to pass supplies to
Plaintiff's cell.
Plaintiff told Officer Brooks that he wanted
1
A cuff port is a "port or windown into a cell through
which items such as food, toilet paper, and other supplies are
passed to inmates.
Plaintiff's cuff port was 16 inches wide by
six inches high.
2 - OPINION AND ORDER
to speak with a sergeant about being denied a shower.
Officer
Brooks advised Plaintiff that he could speak to a sergeant when
the sergeant made rounds.
When Officer Brooks began to close the
cuff port, Plaintiff "suddenly" pushed the cuff port open and
"thrust his arms" through the cuff port in what Officer Brooks
perceived as an attempt to grab and/or to hit him. 2
Brooks called for backup.
Officer
Defendant Correctional Officer Chad
Hickey responded to Officer Brook's call for backup, took hold of
Plaintiff's arms, and tried to push them back into the cell.
Officers Brooks and Hickey ordered Plaintiff to pull his arms
back into his cell, but Plaintiff refused to do so.
Officers
Brooks and Hickey then disengaged and waited for more security
staff to arrive.
"Soon after" Sergeant Johnson arrived with
other correctional officers.
Sergeant Johnson had a hand-held
video camera with him recording his contact with Plaintiff.
Sergeant Johnson ordered Plaintiff to pull his arms back into his
cell.
Plaintiff complied with Sergeant Johnson's order.
Plaintiff also complied with Sergeant Johnson's "cuff up" order.
When Plaintiff was secured with restraints, he was "escorted from
the unit" to the Segregated Housing Unit (SHU) .
When he reached SHU on August 26, 2013, Plaintiff was seen
by Nurse Judy Bradford, who noted Plaintiff had red marks on his
2
In his Complaint Plaintiff refers to this as taking "the
cuff port hostage."
3 - OPINION AND ORDER
right forearm.
Plaintiff, however, was able to wiggle all of his
fingers "easily," to lift and to lower his wrists, to make
circles with his wrists, and to turn the palms of his hands up
and down without any indication of pain.
At some point on August 26, 2013, after Plaintiff's arrival
at SHU, Defendant Lieutenant Jerry Mordhorst advised Plaintiff
"that at no time, should he ever reach out of the cuff port at
staff.
We view this as an attempted assault and staff will
react."
Deel. of Jerry Mordorst, Ex. 1 at 2.
On August 27, 2013, Plaintiff was seen by Nurse Judy
Williams and denied any further injury.
Nurse Wi.lliams advised
Plaintiff to return to sick call as needed.
On August 31, 2013, Defendant Corrections Officer Stuart
Harrison asked Plaintiff whether he needed any supplies.
Officer
Harrison testifies in his Declaration that Plaintiff told him
that he needed supplies, "but [he] began cursing and threatening
[Officer Harrison] with harm if he were to use the cuff-port
device." 3
Deel. of Stuart Harrison at t 7.
Nevertheless,
Officer Harrison used the cuff-port device and provided Plaintiff
with the supplies he requested "without incident."
Id.
Plaintiff alleges in his Complaint that on August 31, 2013,
he asked Officer Harrison to place Plaintiff's dinner in the
3
Officer Harrison also refers to this as the "cuff-port
restriction device" and explains only that it is "on a rolling
cart."
4 - OPINION AND ORDER
cuff-port restriction device "by [Plaintiff's] door rather than
the one by [his] next door neighbor's cell, since he was being
accused of throwing feces at a CO."
Compl. at
'![
9.
Plaintiff
alleges Officer Harrison refused and denied him dinner.
Plaintiff, therefore, asked Officer Harrison to call the Sergeant
"so we could resolve this issue several times but he refused to,
so at about 6:30 p.m.
[Plaintiff] took the cuff port and the
restriction device hostage."
Compl. at
'![
10.
Officer Harrison
testifies in his Declaration that at dinner time on August 31,
2013, he ordered Plaintiff to stand against the back wall of his
cell, and he prepared to use the cuff-port device to provide
Plaintiff with his evening meal.
Plaintiff, however refused to
comply with Officer Harrison's order.
Plaintiff, therefore, was
not provided with his evening meal and "continued with his
cursing and threatening behavior."
Id.
Later on August 31, 2013, when Officer Harrison was alone in
Plaintiff's unit, Plaintiff began kicking his door and screaming
that he needed toilet paper.
Officer Harrison contacted the
"sub-control officer," Officer Beaumont, and notified him that
Officer Harrison was going to deliver a roll of toilet paper to
Plaintiff.
Officer Harrison asked Officer Beaumont to "keep an
eye on [Plaintiff] as a result of his pattern of behavior .
[and] history of violence towards staff and inmates."
Deel. at
'![
8.
Harrison
Officer Harrison describes the events in his
5 - OPINION AND ORDER
Declaration as follows:
I utilized the cuff-port device and opened the
cuff port, after having directed [Plaintiff) to
get against the back wall.
The moment the cuff
port was opened, [Plaintiff) quickly dove to the
port with sufficient force to cause the cuff-port
restriction device .
. to move backwards far
enough for [Plaintiff) to get his arms thru [sic]
the port and begin grabbing at me.
* * *
I grabbed ahold of [Plaintiff's) right arm and
stepped to his left and to the side of the cuff
port. At this same time the sub-control officer
notified staff that I was engaged in an
altercation with an inmate and that backup
officers were required.
There was .
. a short
delay in the response of back up and while I
waited for other corrections staff to arrive, I
maintained control of [Plaintiff's) arm [using)
. a "reverse wrist lock'', which meant holding
[P)laintiff's arm against his body (but not
against the edge of the cuff port) and rotating
[Plaintiff's) forearm to the right slightly. This
wrist lock was intended to control [Plaintiff),
not to cause injury to [Plaintiff).
I used
the wrist lock so that I could control
[Plaintiff's) arm with one hand, leaving my other
hand free to access my cap-stun (chemical pepper
spray) .
I accessed my chemical pepper spray with the
intention of delivering a short blast to the face
of [Plaintiff) to prevent him from continuing to
struggle and fight with the backup officers when
they arrived and removed him from his cell. As I
brought my capstun towards the cuff port,
[Plaintiff) saw the canister and screamed "NO'' and
pulled back with great force.
I pulled back
in the opposite direction to prevent my arm from
going inside the cell, because I believed
[Plaintiff) would cause serious injury to my arm
if he had access to it inside his cell.
It
was at this moment that I heard a loud "pop",
which I surmised was [Plaintiff) 's arm breaking.
6 - OPINION AND ORDER
Harrison Deel. at
~~
9-11.
After the incident on August 31, 2013, Plaintiff was seen by
Nurse Erin Enunert, who splinted Plaintiff's right arm to
inunobilize it while he was transported to the hospital.
On August 31, 2013, Plaintiff was admitted to the emergency
room of the Saint Alphonsus Medical Center.
X-rays of
Plaintiff's arm showed Plaintiff had a spiral fracture of the
"mid to distal right humerus with mild displacement and without
dislocation at the shoulder."
Jason Wilhemsen, M.D., ordered
Plaintiff to keep his arm in a splint and inunobilized and to
follow-up with an orthopedic surgeon within four to five days.
Plaintiff was discharged with instructions to take Norco (an
acetaminophen-Hydrocodone combination) every six hours as needed.
On September 1, 2013, at 12:05 a.m. Plaintiff returned to
SRCI.
Plaintiff's discharge instructions were given to Inmate
Health Services and Plaintiff was provided with pain medication.
At 12:30 p.m. Plaintiff reported to Nurse Megan Ashton that the
pain medication he had received was effective.
On September 3, 2013, Defendant Garth Gulick, M.D., saw
Plaintiff, who complained of breakthrough pain on Norco.
Dr. Gulick prescribed MS Cantin twice a day for pain and ordered
an appointment for Plaintiff with Defendant Randolph Peterson,
M.D., to evaluate Plaintiff's arm to determine whether surgery
7 - OPINION AND ORDER
and "open reduction internal fixation (ORIF)
necessary."
4
would be
Deel. of Garth Gulick at ! 11.
On September 4, 2013, Dr. Peterson reviewed Plaintiff's
August 31, 2013, x-ray and diagnosed Plaintiff with a spiral
fracture to his right humerus.
Dr. Peterson noted "the medial
shaft is in an excellent position" and directed Plaintiff to
continue wearing the splint and to keep his arm immobilized.
Dr. Peterson ordered Plaintiff to undergo follow-up x-rays in 1-2
weeks and noted it would require surgery to repair if Plaintiff's
fracture "displaced."
Gulick Deel. at ! 12 and Ex. 1 at 8.
Plaintiff was seen by various doctors and other medical
staff at SRCI for treatment related to his right-arm fracture at
least 14 times between September 2013 and May 2014.
Plaintiff
underwent x-rays of his right arm four separate times between
September 2013 and May 2014.
All of his x-rays showed normal
healing with only "slight malalignment" within acceptable medical
parameters.
On October 6, 2014, Plaintiff filed a pro se Complaint in
this Court pursuant to 42 U.S.C.
§
1983 in which he alleges
during his time as an inmate at SRCI, Defendants (1) violated
Plaintiff's Fourteenth Amendment rights when they did not allow
Plaintiff "due process before assaulting and subjecting him to
4
ORIF involves implanting "fixators" such as bone screws,
metal plates, pins, and/or rods to repair a broken bone.
8 - OPINION AND ORDER
serious pain and injury," (2) violated the First Amendment to the
United States Constitution when they did "not call[] a supervisor
when Plaintiff asked .
and .
retaliat[ed] against
Plaintiff for attempting to exercise his [F]irst Amendment rights
with the use of excessive force," and (3) were deliberately
indifferent to his serious medical needs in violation of the
Eighth Amendment when they denied him appropriate medical care.
On January 22, 2016, Defendants filed a Motion for Summary
Judgment as to all of Plaintiff's claims.
On January 25, 2016, the Court issued a Summary Judgment
Advice Notice to Plaintiff advising him that if he did not submit
evidence in opposition to Defendants' Motion, summary judgment
would be entered against him if appropriate.
On May 2, 2016, Plaintiff filed a Response to Defendants'
Motion for Summary Judgment.
The Court took this matter under
advisement on May 19, 2016.
STANDARDS
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,
Washington Mut.
636 F.3d 1207, 1216 (9'" Cir. 2011).
Civ. P. 56(a).
Ins. v. United
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
9 - OPINION AND ORDER
Rivera v. Philip Morris, Inc.,
395 F. 3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
"This burden is not a light one
Id.
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F. 3d
1054, 10 61 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248
(1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,
606 F.3d 584, 587
(9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F. 3d 948,
Easter v. Am. W. Fin.,
957 (9th Cir. 2004) (citation omitted).
A "mere
disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford,
1989)).
877 F.2d 728, 731 (9th Cir.
When the nonmoving party's claims are factually
10 - OPINION AND ORDER
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Prod., Inc.,
Miller v. Glenn Miller
454 F. 3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
Defendants move for summary judgment on all of Plaintiff's
claims on the grounds that (1) Plaintiff has failed to allege
personal involvement by Defendants Nooth, Neff, Mordhorst,
Johnson, Shelton, Williamson, Peters, Gower, White, and Bell;
(2) Plaintiff has not established Defendants violated his right
to due process;
(3) Plaintiff has not established Defendants used
excessive force; and (4) Plaintiff has not established he
received inadequate medical care.
I.
Personal Involvement
As noted, Defendants move for summary judgment on
Plaintiff's claims against Defendants Nooth, Neff, Mordhorst,
Johnson, Shelton, Williamson, Peters, Gower, White, and Bell on
the ground that Plaintiff has failed to establish these
Defendants personally participated in the conduct underlying
11 - OPINION AND ORDER
Plaintiff's claims.
The Ninth Circuit has made clear that "'[l]iability under
§
1983 must be based on the personal involvement of the
defendant.
There is no respondeat superior liability under
section 1983.'"
Shallowhorn,
572 F. App'x at 546 (quoting Taylor
v. List, 880 F.2d 1040, 1045 (9ili Cir. 1989)).
Plaintiff does
not allege or establish any facts that suggest Nooth, Neff,
Mordhorst, Johnson, Shelton, Williamson, Peters, Gower, White, or
Bell personally participated in the alleged deprivation of
Plaintiff's medical care.
Accordingly, the Court grants Defendants' Motion for Summary
Judgment as to Plaintiff's claims against Nooth, Neff, Mordhorst,
Johnson, Shelton, Williamson, Peters, Gower, White, and Bell.
II.
Plaintiff's Claim for Denial of Due Process
Plaintiff alleges Defendants violated his Fourteenth
Amendment right to due process "by not allowing Plaintiff due
process before assaulting and subjecting him to serious pain and
injury" and "by establishing an unwritten policy allowing
officers to use 'reactionary force' instead of following
procedures."
Plaintiff does not specifically state in his Complaint
whether he is alleging a claim for substantive or procedural due
process.
The Court, however, infers Plaintiff intends to assert
a claim for procedural due process based on the allegations in
12 - OPINION AND ORDER
his Complaint.
The Supreme Court has made clear that the Due Process Clause
of the United States Constitution "encompasses
of fair procedure."
. a guarantee
Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Accordingly, an inmate may bring an action for a violation of
procedural due process.
"In procedural due process claims,
[however,] the deprivation by state action of a constitutionally
protected interest in life, liberty, or property is not in itself
unconstitutional; what is unconstitutional is the deprivation of
such an interest without due process of law."
Id.
(quotation
omitted) (emphasis in original) .
The constitutional violation actionable under
1983 is not complete when the deprivation
occurs; it is not complete unless and until the
State fails to provide due process.
Therefore, to
determine whether a constitutional violation has
occurred, it is necessary to ask what process the
State provided, and whether it was constitutionally adequate.
This inquiry would examine
the procedural safeguards built into the statutory
or administrative procedure of effecting the
deprivation.
§
Id. at 126.
Contrary to the allegation in Plaintiff's Complaint that
Defendants have established an "unwritten" policy allowing the
use of reactionary force, Oregon Department of Corrections (ODOC)
has a number of regulations permitting the use of reactionary
force and governing its use.
Specifically, Oregon Administrative
Rule 291-013-0010(21) defines Reactive Use of Force as "[t]he use
13 - OPINION AND ORDER
of force in situations where time and circumstances do not permit
approval by higher ranking employees, or consultation or
planning."
Rule 291-013-0080(1) and (2) provide:
(1) Reactive use of force will be allowed for
situations where time and circumstances do not
permit approval by a supervisor or consultation or
planning.
(2) Employees may use any available equipment or
weapons to prevent the loss of life or serious
bodily injury, if no other reasonable alternative
or time is available.
Accordingly, ODOC Regulations specifically permit the use of
reactive force when "time and circumstances do not permit" an
officer to obtain approval of or consultation with a supervisor
before using force.
In his Declaration Captain Thomas Jost
testifies at the time of the August 31, 2013, incident that
it was common knowledge amongst SRCI correctional
officers that inmates can do many things to cause
harm or endanger an officer via the cuff-port.
While not a completely inclusive list, the
following has occurred at SRCI via inmate
cuff-ports:
(1) Inmate stabbing or attempting to
stab an officer; (2) Inmates "poking" at officers
with other items in an attempt to injury the
staff; ( 3) Grabbing a correction officer's arm and
drawing the arm in to the cell in an attempt to
break the officer's arm; ( 4) throwing i terns at the
officer through the cuff-port, such as filling a
plastic baggie or cup with human waste and then
tossing it through the cuff-port at an officer in
an attempt to soil them or infect them with
various types of diseases.
10. Correctional officers carry a variety of
tools on their duty belts that could be seized by
an inmate.
These tools include: hand cuffs, cuff
keys, facility keys, Q.C. (or cap-stun) spray,
radios and what is referred to as ''the pipe''.
14 - OPINION AND ORDER
11. The pipe is a device that resembles a small
baton and is used by correctional staff to
document their tier-check times via a scanning
device implanted in the "pipe". While not as
dangerous as a full-sized police baton, the item
could be used to injury others.
12. O.C. or "cap-stun'' spray can be used to
incapacitate a staff member.
13. Cuffs can be used as both impact and stabbing
weapons, cuff keys secreted by inmates could be
used for escape attempts and the like, as could
facility keys and a radio can easily be used as an
impact weapon or additionally as a method to
gather Intel on tactics which may be about to be
deployed against said inmate.
14. Cuff-ports like the one on [Plaintiff's] cell
posed safety risks to correctional officers. For
instance, an inmate could crash the door of his
cell and impart force on the restriction device
resting against it, thereby causing the device to
push back from the cuff port and allow the inmate
to reach through and grab at the officer, try to
steal items off the officer's duty belt, or throw
something at the officer.
Deel. of Thomas Jost at
~~
9-14.
Captain Jost also testifies:
[I]t was common knowledge among SRCI correctional
officers that [Plaintiff] had attempted to attack
or grab Officers Brooks and/or Hickey during a
previous encounter .
. as a result of the
"cuff-port restriction" notation on the cell
placard [and due to] daily [staff briefings]
During these briefings, the issues
surrounding [Plaintiff's] propensity for violence
and the cuff-port restriction were discussed.
Jost Deel.
at~
7.
Officer Harrison testifies he had been
briefed on Defendant's "attempted assault" of Officers Brooks and
Hickey on August 26, 2013, and he was
aware that [Plaintiff] had been previously charged
with Staff Assault for assaulting Officer Olive on
15 - OPINION AND ORDER
August 11, 2010.
I was also aware of six previous
disciplinary rule violations by [Plaintiff] for
Inmate Assault, two of which ended in a medical
trip for the inmate that [Plaintiff] assaulted.
Deel. of Stuart Harrison at !! 5-6.
The record also reflects at
the time that Plaintiff reached out of the cuff port and
attempted to grab Officer Harrison, Officer Harrison was alone on
the floor and did not have ready access to a supervisor to
consult regarding Defendant's actions.
Officer Harrison
testifies he "truly believed that [Plaintiff] was attempting to
either injure him or trying to grab a possible weapon from [his]
duty belt."
Harrison Deel. at ! 10.
Thus, the record reflects
Harrison was aware of Plaintiff's August 26, 2013, interaction
with Officers Brooks and Hickey as well as several prior charges
against him for assaulting officers and inmates; Officer Harrison
believed Plaintiff was attempting to either injure Officer
Harrison or to grab a potential weapon; and, as noted, Officer
Harrison was alone on the floor.
Viewing this record in the
light most favorable to Plaintiff, the Court concludes the fact 5
Officer Harrison used reactive force against Plaintiff was in
accordance with ODOC regulations, and, therefore, Plaintiff's Due
Process claim fails as a matter of law.
Accordingly, the Court grants Defendants' Motion for Summary
5
The degree to which Officer Harrison's conduct may have
involved unconstitutionally excessive force in violation of the
Eighth Amendment is not affected by this determination.
16 - OPINION AND ORDER
Judgment as to Plaintiff's Due Process Claim.
III. Plaintiff's First Amendment Claim
Plaintiff alleges in his Complaint that Defendants violated
the First Amendment when they did "not call[] a supervisor when
Plaintiff asked .
. and .
. retaliat[ed] against Plaintiff
for attempting to exercise his [F]irst Amendment rights with the
use of excessive force."
Defendants do not address Plaintiff's
First Amendment claim and analyze his claim only under the rubric
of the Eighth Amendment as one for excessive force.
Nevertheless, the Court concludes on this record that Plaintiff
has not established a claim for violation of the First Amendment.
The Ninth Circuit has held
[w]ithin the prison context, a viable claim of
First Amendment retaliation entails five basic
elements:
( 1) An assertion that a state actor
took some adverse action against an inmate
(2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the
inmate's exercise of his First Amendment rights,
and (5) the action did not reasonably advance a
legitimate correctional goal.
Rhodes v. Robinson,
408 F.3d 559, 567-68 (9'h Cir. 2004)
(citations omitted).
Plaintiff alleges in his Complaint that on August 26, 2013,
he "asked for Officer Brooks to call the Sergeant so I could talk
to him about being denied a shower.
When Brooks refused, I took
the cuffport 'hostage' so he would have to call the Sgt., but
instead he slammed the door on my hand .
17 - OPINION AND ORDER
. and called for
Hickey's assistance."
In his Declaration in support of his
Opposition to Defendant's Motion, however, Plaintiff does not
testify that he asked to speak to a Sergeant and only states he
"was denied a shower."
Officer Brooks testifies on August 26, 2013, Plaintiff was
denied a shower and he "indicated to [Officer Brooks] that he
wished to speak with a sergeant."
Brooks Deel. at ! 3.
Officer
Brooks "told [Plaintiff that if] he needed [to, he] could speak
to a sergeant when the sergeant made their [sic] rounds."
Id.
Plaintiff also alleges in his Complaint that on August 31,
2013, he asked Officer Harrison to place Plaintiff's dinner in
the cuff-port restriction device "by [Plaintiff's] door rather
than the one by [his] next door neighbor's cell, since he was
being accused of throwing feces at a CO."
Compl. at !
9.
Plaintiff alleges Officer Harrison refused and denied him dinner.
Plaintiff, therefore, asked Officer Harrison to call the Sergeant
"so we could resolve this issue several times but he refused to,
so at about 6:30 p.m.
[Plaintiff] took the cuff port and the
restriction device hostage."
Compl. at ! 10.
Officer Harrison testifies in his Declaration that at dinner
time on August 31, 2013, he ordered Plaintiff to stand "against
the back-wall of the cell and [he] prepared to use the
cuff-port device.
[Plaintiff,] however, refused to comply.
result, he was not provided with his evening meal due to his
18 - OPINION AND ORDER
As a
refusal to follow directives."
Officer Harrison does not
indicate whether Plaintiff asked to speak with a sergeant.
Assuming without deciding that requesting to speak with a
sergeant is protected conduct under the First Amendment,
Plaintiff has not established there is any genuine issue of
material fact as to whether Defendants injured Plaintiff because
of his request to speak with a sergeant.
As noted, Plaintiff
concedes he took the cuffport "hostage" on August 26 and 31,
2013, by putting his arms through the cuff port.
The Court finds
it was not a constitutionally unreasonable response to this
undisputed conduct for Officers Brooks and Harrison to perceive
Plaintiff's actions as an attempt to grab them or to reach
various items on their persons.
In addition, Plaintiff refused
to comply with the Officers' orders to pull his arms out of the
cuff port and back into his cell.
The Court concludes on this record that Plaintiff has not
established any issue of material fact that Defendants took any
adverse action against him because of his request to speak with a
sergeant and, in fact, the record reflects Defendant Officers
were reacting to Plaintiff taking the cuff-port hostage and did
so in the manner permitted under ODOC Regulations.
Accordingly, the Court grants Defendants' Motion for Summary
Judgment as to Plaintiff's First Amendment Claim.
19 - OPINION AND ORDER
IV. Plaintiff's Eighth Amendment Claim
Although it is not entirely clear, it appears Plaintiff
seeks to assert a claim for excessive force in violation of the
Eighth Amendment arising from the events of August 26, 2013,
and/or August 31, 2013.
A.
Standards
"'[T]he unnecessary and wanton infliction of pain
constitutes cruel and unusual punishment forbidden by the Eighth
Amendment."'
Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting
Whitley v. Albers, 475 U.S. 312 (1986)).
When prison officials
are accused of using excessive physical force .
. in violation
of the Eighth Amendment, "the core judicial inquiry" is "'whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.
ou
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S.
at 7) .
The Ninth Circuit has held courts should consider five
factors when determining whether the use of force was wanton and
unnecessary:
(1) the extent of injury suffered by an inmate; (2) the
need for application of force; (3) the relationship
between that need and the amount of force used; (4) the
threat reasonably perceived by the responsible
officials; and (5) any efforts made to temper the
severity of a forceful response.
Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing
Hudson, 503 U.S. at 7).
20 - OPINION AND ORDER
"[C]ourts[, however,] must accord prison
administrators wide-ranging deference in the adoption and
execution of policies and practices to further institutional
order and security."
Bell v. Wolfish,
See also Jeffers v. Gomez,
441 U.S. 520, 547 (1979).
267 F.3d 895, 917
(9th Cir. 2001)
(same).
B.
August 26, 2013, Incident
To the extent that Plaintiff asserts a claim for
violation of the Eighth Amendment related to the events that
occurred August 26, 2013, Defendants move for summary judgment on
the grounds that Plaintiff's injury was de minimis and the force
used by Officers Brooks and Hickey was not excessive.
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 Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less
than some arbitrary quantity of injury.'"
503 U.S. at 9).
Id.
(quoting Hudson,
Nevertheless, the Supreme Court has made clear
that the absence of serious injury is not irrelevant and that
''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."
Id. at 38
(quotation omitted).
As we stated in Hudson, not "every malevolent
touch by a prison guard gives rise to a federal
21 - OPINION AND ORDER
cause of action." 503 U.S. at 9, 112 S. Ct. 995.
"The Eighth Amendment's prohibition of 'cruel and
unusual' punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of force is
not of a sort repugnant to the conscience of
mankind." Ibid. (some internal quotation marks
omitted). An inmate who complains of a "push or
shove" that causes no discernible injury almost
certainly fails to state a valid excessive force
claim.
Ibid. (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir.1973)).
Injury and force, however, are only imperfectly
correlated, and it is the latter that ultimately
counts. An inmate who is gratuitously beaten by
guards does not lose his ability to pursue an
excessive force claim merely because he has the
good fortune to escape without serious injury.
Accordingly, the Court concluded in Hudson that
the supposedly "minor" nature of the injuries
"provide[d] no basis for dismissal of [Hudson's]
§ 1983 claim."
Id.
The undisputed record reflects Plaintiff suffered only
bruising and scratches on his arm from the incident on August 26,
2013.
A number of district courts in the Ninth Circuit,
including courts in this district, have held injuries such as
those suffered by Plaintiff on August 26, 2013, are de minimus
and, as such, do not support a claim for violation of the Eighth
Amendment.
See, e.g., Jordan v. Edwards, No. CV 15-3125 DOC
(FFM), 2016 WL 2753389, at *5 (C. D. Cal. Apr. 18, 2016) ("A shove
and rough handcuffing are relatively minor uses of force and are
far from 'repugnant to the conscience of mankind.'"); Taylor v.
Johnson, No. C 12-3424 CRB (PR), 2015 WL 6735309, at *3 (N.D.
22 - OPINION AND ORDER
Cal. Nov. 4, 2015) (loss of an artificial tooth on a partial
dental plate and a chip on a different artificial tooth were de
minimum injuries that did not support an Eighth Amendment claim);
Anthony v. Shackmann, No. 07-CV-698-HU, 2009 WL 1065071, at *4
(D. Or. Apr. 17, 2009), vacated on other grounds,
207
402 F. App'x
(9th Cir. 2010) (prison guard's open-handed blow to the
plaintiff's temple did not violate the Eighth Amendment); Swift
v. Iramina, No. 08-00100 JMS-KSC, 2008 WL 1912470, at *3 (D. Haw.
Apr. 29, 2008) (allegation that prison guard pushed plaintiff in
response to question did not state Eighth Amendment violation)
This Court likewise concludes the amount of injury Plaintiff
suffered on August 26, 2013, was de minimus.
Although the extent
of injury is not dispositive of Plaintiff's Eighth Amendment
claim, the Court finds that factor weighs in favor of Defendants.
The undisputed record also reflects the second factor
regarding the need for application of force also weighs in favor
of Defendants.
As noted, Defendants have established the
potentially serious dangers and concerns of corrections officers
that arise when inmates reach through the cuff-port door or take
the cuff port "hostage" as Plaintiff did on August 26, 2013.
As
Captain Jost explained in his Declaration, the threats reasonably
perceived by corrections officers generally and Officers Brooks
and Hickey specifically are numerous and include an inmate
"crash[ing] the door of his cell and impart[ing] force on the
23 - OPINION AND ORDER
'
'
restriction device resting against it, thereby causing the device
to push back from the cuff port and allow[ing] the inmate to
reach through and grab at the officer, try to steal items off the
officer's duty belt, or throw something at the officer."
Deel. at
~
14.
Jost
In addition, Officers Brooks and Hickey attempted
to temper the severity of their response.
They ordered Plaintiff
to pull his arms out of the cuff port and back into his cell.
When it became clear that Plaintiff was not going to comply,
Officers Brooks and Hickey stepped to the side of the cuff port
where Plaintiff could not reach them and waited for assistance
from Sergeant Johnson.
On this record the Court concludes Plaintiff has not
established any issue of material fact as to whether Defendants
used excessive force in violation of the Eighth Amendment on
August 26, 2013.
C.
August 31, 2013, Incident
Defendants also move for summary judgment as to
Plaintiff's excessive-force claim related to the August 31, 2013,
incident on the ground that the force used by Officer Harrison
was not excessive.
Defendants do not assert Plaintiff did not suffer a
serious injury when his arm was broken during the August 31,
2013, incident.
Defendants, however, point out that Officer
Harrison was aware of Plaintiff's prior interactions with
24 - OPINION AND ORDER
Officers Brooks and Hickey as well as Plaintiff's six previous
disciplinary rule violations for Inmate Assault.
In addition, as
noted Officer Harrison was aware of the potentially severe risks
associated with inmates reaching out of the cuff port, and
Officer Harrison
~truly
believed that [Plaintiff] was attempting
to either injure him or trying to grab a possible weapon from
[his] duty belt.n
Harrison Deel. at ! 10.
Officer Harrison was
alone on the floor and did not have backup immediately available
to assist him when Plaintiff reached out of the cuff port and
attempted to grab him.
The record reflects Plaintiff also
grabbed Officer Harrison's arm and appeared to be attempting to
pull Office Harrison's arm into his cell, an event that Officer
Harrison had been trained to recognize as extremely dangerous for
a corrections officer.
Even when viewed in the light most
favorable to Plaintiff, the Court concludes the record
establishes Officer Harrison reasonably perceived a serious
threat when Plaintiff reached out of the cuff port and grabbed at
him, which indicates there was a reasonable need for the
application of force.
Moreover, Plaintiff has not introduced any
evidence from which a rational trier of fact could find
otherwise.
Accordingly, on this record the Court concludes
Plaintiff has not established any issue of material fact that the
force used against him by Officer Harrison on August 31, 2013,
was excessive.
25 - OPINION AND ORDER
Accordingly, the Court grants Defendants' Motion for
Summary Judgment as to Plaintiff's Eighth Amendment claim for
excessive force.
V.
Plaintiff's Claim for Inadequate Medical Care
As noted, Plaintiff contends Defendants were deliberately
indifferent to his serious medical needs in violation of the
Eighth Amendment when they failed to provide him with sufficient
medical treatment and pain medication for his broken arm and when
they failed to provide him with sufficient mental-health
treatment.
Deliberate indifference to serious medical needs is a
cognizable claim for violation of the Eighth Amendment
proscription against cruel and unusual punishment.
Gamble, 429 U.S. 97, 104 (1976).
Estelle v.
See also Colwell v. Bannister,
763 F.3d 1060, 1066 (9th Cir. 2014) (same).
To sustain [a] deliberate indifference claim, [a
plaintiff must] meet the following test:
"First,
the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner's
condition could result in further significant
injury or the unnecessary and wanton infliction of
pain.
Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent."
Peralta v. Dillard, 704 F.3d 1124, 1127
(9th Cir. 2013) (quoting
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
To satisfy
the second prong (i.e., that defendant's response to the need was
deliberately indifferent), a plaintiff must show there was "'(a)
26 - OPINION AND ORDER
a purposeful act or failure to respond to a prisoner's pain or
possible medical need and (b) harm [was] caused by the
indifference.'"
Id.
(quoting Jett,
439 F.3d at 1096).
Deliberate indifference may be established by showing that prison
officials have denied, delayed, or intentionally interfered with
medical treatment or by the way prison officials have provided
medical care.
Jett,
439 F.3d at 1096.
"Mere negligence in diagnosing or treating a medical
condition, without more, does not violate a prisoner's Eighth
Amendment rights."
Toguchi v. Chung, 391 F. 3d 1051, 1057
Cir. 2004) (citation omitted).
(9th
See also Wilhelm v. Rotman, 680
F. 3d 1113, 1122 (9th Cir. 2012) ("Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.") .
In addition, "a plaintiff's showing of nothing more
than a difference of medical opinion as to the need to pursue one
course of treatment over another [is] insufficient, as a matter
of law, to establish deliberate indifference."
Wilhelm,
680 F.3d
at 1122 (quotation omitted).
A.
Medical Care and Pain Medication
Plaintiff alleges he was denied adequate medical care
and pain medication after his arm was broken.
Plaintiff asserts
his humerus is bent inward and occasionally still causes him
pain.
As noted, the undisputed facts show the following:
Plaintiff was admitted to the emergency room of the
27 - OPINION AND ORDER
.
'
'
.
Saint Alphonsus Medical Center on August 31, 2013, after his arm
was broken.
Dr. Wilhemsen ordered Plaintiff to keep his arm in a
splint and immobilized and to follow-up with an orthopedic
surgeon within four to five days.
Plaintiff was discharged with
instructions to take Norco (an acetaminophen-Hydrocodone
combination) every six hours as needed.
On September 1, 2013, at 12:05 a.m. Plaintiff returned
to SRCI.
Plaintiff's discharge instructions were given to Inmate
Health Services, and Plaintiff was provided with pain medication.
At 12:30 p.m. Plaintiff reported to Nurse Megan Ashton that the
pain medication he had received was effective.
Plaintiff's arm
was kept immobilized in a splint.
On September 3, 2013, after Plaintiff complained of
breakthrough pain, Dr. Gulick prescribed MS Cantin twice a day.
Dr. Gulick also ordered an appointment for Plaintiff with
Dr. Peterson to evaluate Plaintiff's arm to see whether surgery
ORIF was necessary.
On September 4, 2013, Dr. Peterson noted Plaintiff's
medial shaft was in "an excellent position° and directed
Plaintiff to continue wearing the splint and to keep his arm
immobilized.
Dr. Peterson also ordered Plaintiff to undergo
follow-up x-rays in 1-2 weeks.
The record reflects Plaintiff was seen by various
doctors and other medical staff at SRCI for treatment related to
28 - OPINION AND ORDER
'
'
.
'
his right-arm fracture at least 14 times between September 2013
and May 2014.
Plaintiff underwent x-rays of his right arm four
separate times between September 2013 and May 2014.
All of his
x-rays showed normal healing with only "slight malalignment"
within acceptable medical parameters.
Plaintiff's final x-ray on
May 15, 2014, showed
fusion of the oblique fracture of the middiaphysis
with smooth cortical lines and only slight
malalignment (acceptable alignment of a humeral
shaft fracture is considered to be 3 centimeters
of shortening, 30 degrees of varus/valgus
angulation (bowing of the bone), and 20 degrees of
anterior/posterior angulation).
There was no
periostitis seen and no osseous destructive
lesions noted.
The shoulder and elbow
articulations were intact.
Gulick Deel. at
~
42; Ex. 1 at 12.
Similarly, Plaintiff's narcotic pain medications were
reviewed and renewed numerous times until January 29, 2014, when
corrections officers found a "cache" of discontinued medications
hidden in the toilet in Plaintiff's cell.
After January 29,
2014, Plaintiff was prescribed Tylenol and anti-inflammatories
for pain regularly.
Viewing the evidence in the light most favorable to
Plaintiff, the Court concludes a reasonable juror could not find
on this record that Defendants were deliberately indifferent to
Plaintiff's serious medical needs with respect to the treatment
of his broken arm and the administration of medication.
Plaintiff, therefore, has not established Defendants violated
29 - OPINION AND ORDER
Plaintiff's rights under the Eighth Amendment.
B.
Mental-Health Treatment
In his Complaint Plaintiff also alleges Defendant
Richard Powelson was deliberately indifferent to his serious
mental- health needs when he did not authorize a "BHS radio" for
Plaintiff following surgery.
Specifically, Plaintiff alleges in
his Complaint that he advised Powelson that he could not read due
to the narcotics he was taking for pain, and he could not write
or "move around" due to pain.
Plaintiff alleges Powelson
"promised to have the Inmate Program Committee or Security
authorize
. a BHS radio."
Compl. at 'lI 27.
Powelson,
however, never asked for a radio.
Powelson testifies in his Declaration that he was a
qualified mental-health specialist for the Behavior Health
Services (BHS) unit at SRCI during the relevant period.
On
September 1, 2013, he met with Plaintiff, who told Powelson that
he was "not doing well, apparently due to his
privileges."
Deel. of Richard Powelson at 'lI 2.
. loss of
Plaintiff "asked
BHS to approve a radio 'or there is going to be some real
trouble.'"
Powelson Deel. at 'lI 2.
Powelson notes in his
Declaration that Plaintiff had an MP3 player at the time of his
request for a radio.
Powelson testifies radios are distributed
by SRCI security staff "as a reward or incentive to inmates in
exchange for reaching a certain level and/or maintaining a period
30 - OPINION AND ORDER
of good conduct."
Id.
Powelson asked security about getting
Plaintiff a radio, but "they were not in favor of it because of
his recent misconduct.
[Plaintiff], like other inmates, had the
ability to get a radio so long as he followed the rules and
completed requisite programming to earn a radio."
Id.
As noted, in order to sustain a claim for deliberate
indifference in violation of the Eighth Amendment, Plaintiff
"must show a serious medical need by demonstrating that failure
to treat a prisoner's condition could result in further
significant injury or the unnecessary and wanton infliction of
pain."
Peralta, 704 F.3d at 1127.
Viewing the evidence in the
light most favorable to Plaintiff, the Court concludes Plaintiff
has not established any issue of material fact as to whether the
failure to provide him with a radio could result in a significant
injury to him or in the unnecessary or wanton infliction of pain.
Plaintiff, therefore, has not established Defendants violated
Plaintiff's rights under the Eighth Amendment when Powelson
failed to provide Plaintiff with a radio.
Accordingly, the Court grants Defendants' Motion for Summary
Judgment.
CONCLUSION
For these reasons, the Court GRANTS
Defendants' Motion
(#55) for Summary Judgment and DISMISSES this matter with
31 - OPINION AND ORDER
prejudice.
IT IS SO ORDERED.
DATED this 1st day of July, 2016.
ANNA J. BROWN
United States District Judge
32 - OPINION AND ORDER
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