Taylor v. Clark et al, No. 1:2007cv00032 - Document 158 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendants Clark and Adams are not entitled to judgment as a matter of law such that their Motion for Summary Judgment, filed December 3, 2010 (Docs. 112, 113), should be DENIED; re 112 MOTION for SUMM ARY JUDGMENT filed by Darrell Adams, Ken Clark and 113 AMENDED MOTION for SUMMARY JUDGMENT amending 112 MOTION for SUMMARY JUDGMENT ; referred to Judge Ishii, signed by Magistrate Judge Sandra M. Snyder on 02/16/2011. Objections to F&R due by 3/7/2011(Martin, S)

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Taylor v. Clark et al Doc. 158 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GERALD TAYLOR, 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS CLARK & ADAMS BE DENIED Defendants. 11 12 CASE NO. 1:07-cv-00032-AWI-SMS PC (Docs. 112, 113) v. KEN CLARK, et al., 13 14 OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 15 / 16 FINDINGS AND RECOMMENDATIONS 17 I. Procedural History 18 Plaintiff Gerald Taylor (“Plaintiff”) is a state prisoner proceeding in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983 and California tort law. This action is 20 proceeding on Plaintiff’s First Amended Complaint, filed June 20, 2007, against Defendant 21 McKesson for battery and use of excessive physical force in violation of the Eighth Amendment; 22 against Defendant Wofford for failure to protect Plaintiff, in violation of the Eighth Amendment; 23 and against Defendants Clark and Adams under a theory of supervisory liability. (Doc. 15, 1st 24 Amd. Comp.;1 Doc. 19, Cog Claim Ord.) 25 Defendants McKesson, Wofford, Clark, and Adams filed for dismissal for failure to state 26 27 1 28 Defendants’ request that judicial notice be taken of Plaintiff’s Amended Complaint, filed June 29, 2007, Docket No. 15 is granted. (Doc. 112-3.) 1 Dockets.Justia.com 1 a claim and for failure to exhaust his administrative remedies prior to filing suit (Docs. 30, 34, 2 and 35) which was granted in part and denied in part: (1) Defendant McKesson’s motion to 3 dismiss the battery claim against him for failure to allege compliance with the California Tort 4 Claims Act was granted with leave to amend; (2) Defendant McKesson’s motion to dismiss the 5 excessive force claim against him for failure to sufficiently allege an injury, Defendants Clark 6 and Adams’ motion to dismiss the section 1983 supervisory liability claim against them for 7 failure to state a claim, and Defendants’ Wofford, Clark, and Adams motion to dismiss for failure 8 to exhaust were all denied; and (3) Plaintiff was granted thirty days within which to file a second 9 amended complaint curing the defects in his state law battery claim. (Docs. 41-42.) Plaintiff did 10 not amend his complaint, rather he withdrew his state law battery claim against Defendant 11 McKesson. (Doc. 43.) 12 Defendant Wofford filed a motion for judgment on the pleadings under unenumerated 13 Rule 12(b) and Rule 12(c) of the Federal Rules of Civil Procedure (Doc. 85) which was 14 ultimately denied (Docs. 100, 130). 15 On December 3, 2010, Defendants Clark and Adams filed a motion for summary 16 judgment arguing that they are entitled to summary judgment because (1) there is no evidence to 17 support a claim against either of them under 42 U.S.C. §1983, (2) Plaintiff failed to exhaust his 18 administrative remedies with respect to his claims against Defendants Clark and Adams, and (3) 19 Defendants Clark and Adams are entitled to qualified immunity. (Docs. 112, 113.2) Plaintiff 20 filed his opposition3 (Docs. 131) and Defendants filed their reply. (Doc. 142.) Plaintiff was 21 granted leave and filed a sur-reply.4 (Doc. 149.) The motion has been deemed submitted. Local 22 Rule 230(l). 23 24 25 26 27 2 Defendants Adams and Clark filed an Amended Notice of Motion for Summary Judgment correcting the hearing date to 1/28/2011, rather than 1/28/2010 as reflected in their initial Notice of Motion for Summary Judgment. (Doc. 136.) 3 Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the Court in an order filed on April 25, 2007. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 14.) 4 28 On January 25, 2011, a telephonic conference was held at which time the hearing of this motion was taken off calendar and Plaintiff was granted leave to file a sur-reply. 2 1 II. 2 Plaintiff’s Cognizable Allegations and Claims in the First Amended Complaint5 Plaintiff alleged that prior to his transfer to the California Substance Abuse Treatment 3 Facility and State Prison (“SATF”) in Corcoran, California he was classified as “DPH- 4 Deaf/hearing Impaired” which necessitated his use of a hearing aid in order to communicate with 5 others and that he required a “Hearing Impairment Identification Vest and transfer to a Disability 6 Placement Program (“DPP”) Facility such as SATF. (Doc. 15, 1st Amd. Compl, §§ 14, 15.) 7 Upon arrival at SATF, Plaintiff was examined by Defendant Nurse J. Wofford, whom he 8 informed of his need, but did not issue Plaintiff an identification vest. (Id., at § 17.) Upon return 9 from a court appearance, Plaintiff once again saw Defendant Wofford and requested an 10 identification vest as well as a battery for his hearing aid, which was not working. (Id., at § 19.) 11 Defendant Wofford told Plaintiff she would get him a battery as soon as she could, but did not 12 immediately provide him with a battery or an identification vest. (Id.) 13 A few days later, while Plaintiff was in the shower, he saw Defendant McKesson and 14 another officer enter his cell and exit with what turned out to be Plaintiff’s glue sticks. (Id., at §§ 15 21, 22.) Upon exiting the shower, Plaintiff made inquiry regarding the glue sticks during which a 16 verbal exchange took place in which Plaintiff ultimately requested an inmate appeal CDCR form 17 602 (hereinafter “602”). (Id., at §§ 23-38.) As Plaintiff turned to return to his cell, Defendant 18 McKesson grabbed Plaintiff from behind and threw Plaintiff to the floor causing injuries and 19 pain. (Id., at §§ 38, 39.) Plaintiff alleges that this incident occurred, at least in part, because his 20 hearing aid was not functioning properly and he did not have an identification vest. (Id., at §§ 21 52-55.) 22 Plaintiff’s First Amended Complaint was screened pursuant to 28 U.S.C. § 1915A and 23 found to state cognizable claims for relief against Defendant Wofford for failure to protect 24 Plaintiff, in violation of the Eighth Amendment, against Defendant McKesson for battery and use 25 of excessive physical force in violation of the Eighth Amendment, and against Defendants Clark 26 27 28 5 This rendition of the factual allegations upon which Plaintiff’s claims against Defendants were found cognizable are presented here for overview purposes only. Undisputed and disputed material facts are discussed where applicable in the following sections. 3 1 and Adams under a theory of supervisory liability. (Doc. 19.) Plaintiff alleged that Defendants 2 Clark and Adams violated his rights by failure to train, supervise, and discipline Defendant 3 McKesson. (Doc. 15, 1st Amd. Compl., §§ 48-51.) 4 III. 5 Summary Judgment Standard Summary judgment is appropriate when it is demonstrated that there exists no genuine 6 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 7 Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 8 9 10 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 12 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 13 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on 14 file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery and 15 upon motion, against a party who fails to make a showing sufficient to establish the existence of 16 an element essential to that party's case, and on which that party will bear the burden of proof at 17 trial. Id., at 322. “[A] complete failure of proof concerning an essential element of the 18 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 19 circumstance, summary judgment should be granted, “so long as whatever is before the district 20 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 21 satisfied.” Id., at 323. 22 If the moving party meets its initial responsibility, the burden then shifts to the opposing 23 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 24 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 25 existence of this factual dispute, the opposing party may not rely upon the denials of its 26 pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or 27 admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 28 4 1 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 2 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 3 law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific 4 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 5 the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool 6 v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 7 The parties bear the burden of supporting their motions and oppositions with the papers 8 they wish the Court to consider and/or by specifically referencing any other portions of the record 9 they wish the Court to consider. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 10 1031 (9th Cir. 2001). The Court will not undertake to mine the record for triable issues of fact. 11 Id. 12 IV. Undisputed Facts6 13 A. 14 In the chain of command at SATF, the warden is at the top, followed by chief deputy Wardens 15 wardens, associate wardens, facility captains, correctional lieutenants, correctional sergeants and 16 correctional officers. (Id., at DUF No. 8.) Roughly 1300 correctional officers and several 17 thousand inmates were at SATF during the time period relevant to Plaintiff’s complaint. (Id., at 18 DUF No. 9.) The warden can request an internal affairs investigation, but cannot appeal the 19 outcome of an investigation showing the allegations were unsustained. (Id., at DUF No. 15.) If 20 allegations of staff misconduct are unsubstantiated after an investigation, the warden has no 21 authority to discipline the officer. (Id., at DUF No. 16.) The warden has no role in determining 22 the type of training received by correctional officers during the training academy or the 23 mandatory annual training courses. (Id., at DUF No. 36.) The warden at SATF has the authority 24 to look at a correctional officer’s personnel file. (Id., DUF No. 86.) 25 26 27 28 6 This rendition includes facts listed by both parties as undisputed in their separate statement of facts and which the opposing party did not identify as disputed in their response. It also includes statements of fact to which one party or the other objected, but are able to be, and have been modified so as to accommodate the objection without losing the purport of each stated fact (i.e. semantics) with such modifications noted in each. Truly material disputed facts are addressed subsequently where applicable. 5 1 B. 2 Defendant Adams was employed by the CDCR since 1979, retired, then returned to work 3 as a retired annuitant. (Doc. 112-2, DUF No. 2.) Defendant Adams was the warden at California 4 SATF from August 2000 until December of 2005. (Id., at DUF No. 3; Doc. 142-1, Reply to Opp. 5 DUF No. 77.) When Defendant Adams was warden at SATF but not physically present, he 6 would leave one of the chief deputies in charge. (Doc. 142-1, DUF No. 78.) Defendant Adams 7 was detailed to locations other than SATF at least ten times while he was the warden, sometimes 8 for several months, including an assignment in Sacramento from June 2005 through November 9 2005. (Id., at DUF No. 44.) Defendant Adams was rarely at SATF in 2005. (Id., at DUF No. Defendant Adams’ Position & Duties 10 45.) Defendant Clark was one of the deputy wardens left in charge while Defendant Adams was 11 warden. (Id., DUF No. 79.) 12 Defendant Adams was detailed to another location and was not at SATF when two 13 internal affairs investigation reports involving Defendant McKesson were returned, and he is not 14 sure who received the documents in his absence. (Id., at DUF No. 46.) It was part of Defendant 15 Adams’ responsibility as warden to be aware of officers who had an unusually large number of 16 602 complaints. (Id., DUF No. 80, Ex. H7, Adams Dep. - Singh Case 36:18-22.) At some point, 17 Defendant Adams became concerned about Defendant McKesson’s behavior in relation to 18 inmates, but he does not know when that occurred. (Id., DUF No. 81, Ex. H, Adams Dep. - 19 Singh Case 37:23-25; 38:1-3.) When Defendant Adams became concerned about Defendant 20 McKesson, he opened up at least one investigation on him. (Id., DUF No. 83.) Defendant 21 Adams admits that reviewing any previous Internal Affair investigations of Defendant McKesson 22 would have been prudent if or when Defendant Adams contemplated bringing disciplinary 23 actions against Defendant McKesson. (Id., DUF No. 84; Ex. H, Adams Dep. - Singh Case 24 39:12-18.) In answer to the question, “What you’re saying is that you would assume that as part 25 7 26 27 28 Plaintiff’s “Exhibit H” has been sealed and contains excerpts of a copy of Defendant Adams’ deposition testimony from another case (hereinafter “Adams Dep. - Singh Case *:*”). All references to excerpts from Defendant Adams’ deposition testimony in this action are identified as “Adams Dep. *:*.” Plaintiff’s “Exhibit I” has been sealed and contains documents obtained through discovery in this matter which are identified by pagination on the lower right corner of each page. Such is the demarcation utilized herein despite the fact that Plaintiff, in his opposition, refers to documents from both of these exhibits as being located in “Exhibit H.” 6 1 of your responsibilities when you contemplated conducting an investigation of [Defendant] 2 McKesson, that you would go back and look at his previous IA investigations at SATF?” 3 Defendant Adams responded “Yes.” (Id., DUF No. 85, Adams Depo. - Singh Case 40:7-12.) 4 C. 5 Defendant Clark is currently the Associate Director of Reception Centers for the Defendant Clark’s Position & Duties 6 California Department of Corrections and Rehabilitation (hereinafter “CDCR”). (Id., at DUF 7 No. 6.) Defendant Clark was the warden at SATF from 2006 through 2008. (Id., at DUF No. 4.) 8 Defendant Clark was either acting warden or warden in March of 2006. (Doc. 132-2, PF No. 91; 9 Clark Dep. 99:17-2.) With the exception of a few years spent attending school and teaching, 10 Defendant Clark has been employed by the CDCR since 1983, when he was hired as a 11 correctional officer. (Id., at DUF No. 5.) Defendant Clark has fired correctional officers for 12 dishonesty, theft, felonies, and death of an inmate by neglect. (Doc. 132-2, PF No. 88, Clark Dep. 13 32:14-15.) Defendant Clark would not read every Internal Affairs report that was referred to 14 him; rather, the Employee Relations Officer would review the reports. (Id., PF. No. 89; Clark 15 Depo. 42:24; Doc. 142-1, Def. Obj. To PF No. 89.) SATF was a hub for hearing-impaired 16 inmates and had a large amount of hearing impaired inmates when Defendant Clark was warden. 17 (Doc. 132-2, PF. No. 88; Clark Dep. 85:2-6.) 18 D. 19 Plaintiff arrived at the SATF on January 27, 2006, where he was incarcerated for about a Precipitating Event 20 year and a half. (Doc. 112-2, Def. Stmt of Undsp. Fact (hereinafter “DUF”), No. 1.) Plaintiff 21 was a CDCR inmate at the time of the incidents giving rise to this action, and Plaintiff continues 22 to be incarcerated in CDCR. (Doc. 132-2, Plntf Sep. Stmt. Addl Facts, (hereinafter “PF”) No.1.) 23 He has been hearing impaired since the age of eighteen as a result of significant head trauma such 24 that, without hearing aids, he has roughly twenty percent of his hearing. (Id., at PF No. 2.) 25 On March 6, 2006, while Plaintiff was in the shower, he observed Defendant McKesson 26 confiscate three glue sticks from his cell. (Id., at DUF No. 18.) After Plaintiff observed 27 Defendant McKesson with his property, Plaintiff went to the sallyport to ask Defendant 28 McKesson for his property back. (132-1 at PF No. 40.) Plaintiff walked to the sallyport entrance 7 1 in search of Defendant McKesson and saw him standing in the staff restroom doorway in the day 2 room talking to a man in civilian clothing. (Doc. 112-2, at DUF No. 19.) Plaintiff believed the 3 proper protocol for objecting to the removal of his property from his cell was to speak with the 4 officer. (132-1 at PF No. 41.) When Plaintiff arrived at the sallyport, he observed Defendant 5 McKesson talking to a gentleman in civilian clothing. (Id., at PF No. 42.) While standing at the 6 sallyport, Plaintiff asked Defendant McKesson if he could speak with him. (Id., at PF No. 43.) 7 Defendant McKesson then ordered Plaintiff to stand behind a yellow line and Plaintiff complied. 8 (Id., at PF No. 44.) 9 Plaintiff asked Defendant McKesson if he could talk to him but did not mention that he 10 was hearing impaired. (Doc. 112-2 at DUF No. 20.) During the following brief exchange, 11 Plaintiff was able to communicate with Defendant McKesson because he could hear him a little 12 and could also read his lips.8 (Id., at DUF No. 21.) Plaintiff claims Defendant McKesson told 13 him, “Next time you see me talking to somebody important, keep your fucking mouth shut,” and 14 Plaintiff responded that his glue sticks were important too.9 (Id., at DUF No. 22.) Defendant 15 McKesson went into his office and sat down at his desk. (Id., at DUF No. 23.) Plaintiff followed 16 Defendant McKesson to his office. (Id., at DUF No. 24.) Defendant McKesson asked Plaintiff 17 why he was on the SNY (Special Needs Yard), but Plaintiff ignored his question “[b]ecause it 18 wasn’t important,” and asked for his glue sticks back. (Id., at DUF No. 25.) Defendant 19 McKesson refused, and Plaintiff claims he asked for an inmate grievance form (602) and told 20 Defendant McKesson, “You’re physically bigger than me, but if you give me a 602 I [sic] dust 21 you off.” (Id., at DUF No. 26.) 22 Plaintiff claims that he was turning around to go back to his cell when Defendant 23 McKesson grabbed him from behind by the right wrist and right shoulder, and took him to the 24 dayroom floor. (Id., at DUF No. 28.) Plaintiff does not know whether Defendant McKesson 25 8 26 27 Plaintiff disputed Defendants’ fact as it was vague as to time (i.e. just when Plaintiff and Defendant McKesson were facing each other). W hile such timing was a material fact in Defendant McKesson’s motion for summary judgment, it is not material in the motion brought by Defendants Clark and Adams. 9 28 This is included as an undisputed fact since the only dispute raised by Plaintiff was that Defendants’ version replaced the expletive with ellipsis marks. 8 1 gave him any type of order as he was turning away. (Id., at DUF No. 29; Doc. 132-2, PF No. 62.) 2 Plaintiff claims his right wrist hit the ground first, followed by his shoulders and the front of his 3 body. (Id., at DUF No. 30.) Plaintiff’s face never touched the floor because he caught himself as 4 he fell. (Id., at DUF No. 31.) After he was taken to the ground, Plaintiff did not ask for an 5 explanation (id., at DUF No. 32), though he did file a 602 requesting the incident be investigated 6 (Doc. 132-1, Plntf Resp. to DUF No. 32). Plaintiff refused to comply with numerous orders to 7 go back to his cell, and twice told Defendant McKesson, “I can dust you off.”10 (Id., at DUF No. 8 27.) Plaintiff claimed he suffered pain, swelling, and a knot on the back of his right hand after 9 the alleged incident on March 6, 2006. (Doc. 112-2 at DUF No. 33.) Plaintiff felt pain and a 10 knot in the same area on his right hand on three prior occasions - twice in 2005 and once on 11 March 1, 2006 - while doing pushups and pullups. (Id., at DUF No. 34.) Plaintiff had surgery on 12 his hand on March 16, 2006. (Doc. 132-2, PF No. 65.) Plaintiff was prescribed physical therapy, 13 continues to suffer significant pain (7 on a scale of 1 to 10), and still takes pain medication for 14 the injuries sustained to his hand. (Id., at PF Nos. 66-68.) 15 Defendant McKesson field a Rules Violation Report against Plaintiff for threatening a 16 public official for which Plaintiff was found not guilty. (Id., at PF Nos. 70-74.) Plaintiff’s 17 allegations of staff misconduct against McKesson were unsustained after an investigation. (Id., 18 at DUF No. 47.) Defendant Clark has no recollection of Plaintiff’s grievance SATF-Z-06-01022 19 complaining of the use of force by Defendant McKesson, and the second level response letter 20 was signed by Jack Hutchins, the chief deputy warden.11 (Id., at DUF No. 48.) Plaintiff has 21 never met Defendant Clark or Adams. (Id., at DUF No. 37.) Defendants Clark and Adams do 22 not recall Plaintiff, nor were they aware of an incident between Plaintiff and Defendant 23 McKesson until this lawsuit was filed. (Id., at DUF No. 38.) 24 10 25 26 27 28 The only dispute as to this fact is that Defendants claim the evidence supporting it is shown in an incident report authored by Officer Lindquist, while Plaintiff correctly points out that the evidence which Defendants rely on is a Reasonable Modification or Accommodation Request authored by Plaintiff. (Doc. 132-1, Plntf. Rsp. to DUF No. 27, ref. Ex. 1 to Taylor Dep.) 11 Plaintiff did not dispute this fact, but objected to the Hall declaration which was cited by Defendants as evidence in support of this fact. (Doc. 132-1, Plntf. Rsp. to DUF No. 48.) The issues raised by the Hall declaration and its consideration in this motion are discussed subsequently herein on page 32. 9 1 Defendant Adams testified that Defendant McKesson is an officer who addresses his job 2 in terms of “black and white” – there are no gray areas for him. (Id., DUF No. 82; Adams Dep. 3 36:4-7.) Defendants Clark and Adams recall Defendant McKesson as a “by the book” officer 4 who enforced the rules and followed regulations. (Id., at DUF No. 39.) Inmates file complaints 5 against officers who do their job “by the book,” i.e., an officer who does his job by the book can 6 still have complaints filed against him.12 If an officer receives complaints, it does not necessarily 7 mean he is not doing his job. (Id., at DUF No. 41.) Numerous SATF correctional officers have 8 been investigated by Internal Affairs several times. (Id., at DUF No. 42.) More than one Internal 9 Affairs investigation about the same correctional officer can mean that the officer is doing his job 10 and that inmates are trying to pressure him not to do his job. (Id., at DUF No. 43.) Use of 11 physical force by a correctional officer is common and officers are trained how to use force 12 appropriately.13 (Id., at DUF No. 35.) 13 A. 14 Supervisory Liability Under 42 U.S.C. §1983 1. Supervision and/or Discipline 15 It is true that the Supreme Court has rejected liability on the part of supervisors for 16 “knowledge and acquiescence” in subordinates’ wrongful discriminatory acts. Ashcroft v. Iqbal, 17 ___ U.S. ___, 129 S.Ct.1937, 1949 (2009) (“[R]espondent believes a supervisor’s mere 18 knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the 19 Constitution. We reject this argument.”) However, Defendants argument that Iqbal effectively 20 eviscerated supervisory liability is without merit as in the very same decision, the Supreme Court 21 held that “discrete wrongs – for instance, beatings – by lower level Government actors . . . if true 22 23 24 25 26 27 28 12 Defendants asserted that inmates are more likely to file grievances against “by the book” officers, and less likely to file complaints against weaker officers who let them have their way. (Id. at DUF No. 40.) Plaintiff disputed this fact inasmuch as it is based on Defendant Clark’s deposition testimony wherein he was given a “scenario example” in which an officer “could actually still be doing their job and get complaints” which does not necessarily imply that inmates are more likely to file grievances against “by the book” officers in all situations. (Doc. 132-1, Plntf. Rsp. to DUF No. 40.) 13 Plaintiff’s only dispute as to this fact is that it was written incompletely since Defendant Clark testified that use of force by correctional officers is “common, loosely with the term ‘common,’ that’s open to definition, but there is a lot of – in the institutions of our size there is a large amount of use of force.” (Doc. 132-1, Plntf. Rsp. to DUF No. 35.) 10 1 and if condoned by [supervisors] could be the basis for some inference of wrongful intent on [the 2 supervisors’] part.” Iqbal, 129 S.Ct. at 1952 (emphasis added). Further, the Ninth Circuit very 3 recently held that “. . . where the applicable constitutional standard is deliberate indifference, a 4 plaintiff may state a claim for supervisory liability based upon the supervisor’s knowledge of and 5 acquiescence in unconstitutional conduct by others.” Starr v. Baca, ___ F.3d ___, 2011 WL 6 477094, *4 (9th Cir., Feb. 11, 2011). It is under this rubric that the traditional and still valid 7 elements of supervisor liability within the Ninth Circuit are properly analyzed. 8 9 Plaintiff is required to prove that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. Long v. 10 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). As wardens and/or employees of 11 the CDCR at all times in issue in this action, it is undisputed that Defendants Clark and Adams 12 acted under color of state law. (Doc. 132-1, Plntf. Rsp. to DUF Nos. 2-6; Doc. 142-1, Def. Obj. 13 To PF Nos. 76-79.) The question thus becomes whether Defendants Clark and /or Adams 14 deprived Plaintiff of his constitutional rights. 15 There is no respondeat superior liability and each defendant is only liable for his or her 16 own misconduct. Iqbal, 129 S.Ct. at 1948-49. A supervisor may be held liable for the 17 constitutional violations of his or her subordinates only if he or she “participated in or directed 18 the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 19 F.2d 1040, 1045 (9th Cir. 1989); also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); 20 Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); 21 Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). In other words, to survive a motion for 22 summary judgment, Plaintiff must adduce evidence that Defendant Adams and/or Clark “. . . 23 acted or failed to act unconstitutionally, not merely that a subordinate did.” Simmons v. Navajo 24 County, Ariz. 609 F.3d 1011, 1020-21 (9th Cir. 2010). “Supervisory liability is imposed against 25 a supervisory official in his individual capacity for his own culpable action or inaction in the 26 training, supervision, or control of his subordinates, for his acquiescence in the constitutional 27 deprivations of which the complaint is made, or for conduct that showed a reckless or callous 28 indifference to the rights of others.” Corales, 567 F.3d at 570, quoting Preschooler II, 479 F.3d 11 1 2 at 1183 (quoting Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005)). In a section 1983 claim, “a supervisor is liable for the acts of his subordinates ‘if the 3 supervisor participated in or directed the violations, or knew of the violations of subordinates and 4 failed to act to prevent them.’ ” Id., quoting Preschooler II, 479 F.3d at 1182 (quoting Taylor, 5 880 F.2d at 1045). “The requisite causal connection may be established when an official sets in 6 motion a ‘series of acts by others which the actor knows or reasonably should know would cause 7 others to inflict’ constitutional harms.” Id., quoting Preschooler II, at 1183 (quoting Johnson v. 8 Duffy, 588 F.2d 740, 743 (9th Cir.1978)). 9 Accordingly, the crux of issues in this case for purposes of this motion is whether 10 Defendants Clark and Adams knew, or reasonably should have known, of Defendant 11 McKesson’s propensity for violence (via the various investigations into accusations against him) 12 and whether they could have taken supervisory and/or disciplinary actions towards Defendant 13 McKesson, other than as actually occurred to equate to a failure to act, that they knew or 14 reasonably should have known would cause instances of Defendant McKesson using excessive 15 force such as the type Plaintiff claims caused him injury in this case. 16 a. Defendants’ Position 17 Defendants Clark and Adams argue that Plaintiff has not shown that Defendant 18 McKesson violated his constitutional rights (Doc. 112-1, Def. P&A, 7:4-5), but even if he did, 19 that Plaintiff has produced no evidence that Defendant Clark or Defendant Adams acted 20 unconstitutionally, nor has he demonstrated that Defendant Clark or Defendant Adams caused 21 Defendant McKesson’s alleged unconstitutional conduct, or that they knew or should have 22 known that the alleged constitutional violation would result (id., at 7:5-9). Defendants also argue 23 that Plaintiff has no evidence to support the claim in his operative pleading that actions by 24 Defendants Clark and Adams were “malicious, fraudulent and oppressive, with the wrongful 25 intention of injuring plaintiff.” (Id., at 7:9-11, quoting Doc. 15, Amd. Compl., pp. 8:8-9:19.) 26 Defendant Adams was the warden at SATF until December of 2005. (Id., at 7:12, Doc. 27 132-1, Plntf. Resp. to DUF No. 3; Adams Dep, 10:7-16.) Plaintiff arrived shortly after 28 Defendant Clark became the warden in January of 2006. (Id., at 7:12-13; Doc. 132-1 DUF Nos. 12 1 1, 4.) Neither Defendant Clark nor Defendant Adams recall Plaintiff, and Plaintiff never met 2 either of them. (Id., at 7:13-14; Doc. 132-1 DUF Nos. 37, 38; Taylor Dep. 133:5-6, 134:14-15; 3 Clark Dep. 84:24-85:15; Adams Dep. 35:22-23, 84:9-18.) Defendants also argue that neither 4 Defendant Clark nor Defendant Adams directly supervised Officer Defendant McKesson. (Doc. 5 112-1, Def. P&A, 8:1; Doc. 132-1, DUF Nos. 7, 8; Clark Dep. 18:2-8, 13-18.) Defendant Adams 6 was no longer working at SATF at the time of the incident on March 6, 2006 (id., at 8:1-2; Doc. 7 132-1, DUF No. 3; Adams Dep. 10:7-16) and, although Defendant Clark was the warden on 8 March 6, 2006, he was far removed from Defendant McKesson in the chain of command (id., at 9 8:2-4; Doc. 132-1, DUF No. 7; Clark Dep. 18:2-8) as several layers of supervisory personnel 10 separated them: chief deputy wardens; associate wardens; facility captains; correctional 11 lieutenants; and correctional sergeants (id., at 8:4-6; Doc. 132-1, DUF No. 8; Clark Dep. 18:13- 12 18). 13 Defendants further argue that Plaintiff does not contend that Defendant Clark was 14 physically present or witnessed the incident on March 6, 2006 (id., at 8:6-8; Doc. 132-1, DUF 15 Nos. 37, 38; Clark Dep. 84:24-85:6; 85:10-15; Adams Dep. 35:22-23, 84:9-18; Taylor Dep. 16 133:5-6; 134:14-15) and that Plaintiff has produced no evidence that either Defendant Clark or 17 Defendant Adams could, or should have taken any disciplinary action against Defendant 18 McKesson (id., at 8:9-10). Defendants argue that while the Amended Complaint alleges that 19 Defendant McKesson engaged in acts of “intimidation, retaliation, brutality, and racism” that 20 were “so numerous” that Defendants Clark and Adams should have disciplined and fired 21 Defendant McKesson after his “psychopathic behavior in tormenting and torturing inmates was 22 brought to their attention” (id., at 8:10-14, quoting Doc. 15, Amd. Comp., ¶ 51), these dramatic 23 contentions are unsupported by the evidence (id., at 8:14-15); that Plaintiff has not submitted any 24 evidence of substantiated “psychopathic behavior” or use of excessive force by Defendant 25 McKesson (id., at 8:15-16); and, that when allegations of staff misconduct are unsubstantiated 26 after an investigation, the warden has no authority to discipline an officer (id., at 8:16-18; Doc. 27 132-1, DUF No. 16; Adams Dep. 57:12-58:14; 68:6-9.) 28 Defendants continue by arguing that Plaintiff’s contention that Defendants Clark and 13 1 Adams were aware of other complaints about Defendant McKesson prior to the incident on 2 March 6, 2006 is insufficient to raise a triable issue of fact that Defendant Clark or Defendant 3 Adams “conducted [himself] in a reckless or malicious manner or that [his] actions were, in fact, 4 deliberate.” (Id., at 8:19-22, quoting Jeffers v. Gomez, 267 F.3d 895, 916 (9th Cir. 2001).) 5 Defendants argue that they are entitled to summary judgment as there is no evidence of an 6 “affirmative link” between the conduct of either Defendant Clark or Defendant Adams and the 7 alleged constitutional deprivation. (Id., at 8:23-25, quoting Rizzo v. Goode, 423 U.S. 362, 371 8 (1976).) 9 Defendants also argue that they are entitled to summary judgment since Plaintiff 10 submitted neither argument, nor evidence that either Defendant Clark or Defendant Adams 11 personally participated in the alleged violations, and that the testimony from Plaintiff’s expert 12 (that Defendants Clark and Adams are liable for not disciplining Defendant McKesson more 13 severely which would have prevented the incident of which Plaintiff complains) erroneously 14 assumes that Defendants Clark and Adams could have disciplined a correctional officer even 15 after investigation found claims of excessive force to be unsubstantiated. (Id., at 4:1-5:20.) 16 Defendants rely on the facts that Defendants Clark and Adams did not have the authority to 17 discipline a correctional officer based on unsubstantiated allegations and, while they could 18 request an internal affairs investigation, they could not appeal the outcome of an investigation 19 showing the allegations were unsustained. (Id., at 5:10-12; see Doc. 132-1, DUF Nos. 15 & 16; 20 Clark Dep . 27:12-14; Adams Dep. 57:12-58:14; 68:6-12.) 21 Defendants finally argue that “[f]ollowing the decision by the United States Supreme 22 Court in Ashcroft v. Iqbal, to the extent supervisor liability survived the opinion at all, a 23 supervisor liability claim against a defendant sued in his individual capacity must be based on an 24 affirmative, purposeful act by the defendant, such as where a supervisor implements an official 25 policy that is so deficient so as to result in a repudiation of a plaintiff’s constitutional rights; [that 26 s]upervisor liability may no longer be based on inaction, such as knowledge and acquiescence of 27 a subordinate’s unconstitutional conduct and a failure to act; [and that t]o the extent Ninth 28 Circuit case law holds otherwise, it is no longer controlling authority.” (Doc. 142, Def. Reply, 14 1 1:21-2:2.) Defendants further suggest that supervisor liability has been “entirely eliminated,” or 2 has at least been severely narrowed such that “liability may no longer be based on inaction, such 3 as knowledge and acquiescence and a failure to act or deliberate indifference regarding a 4 subordinate’s alleged unconstitutional conduct,” but rather that “liability may only be found 5 where the supervisor commits a purposeful act that leads to the deprivation of the plaintiff’s 6 constitutional rights.” (Id., at 3:6-17.) While Defendants’ arguments along this vein would be 7 true if this case dealt with a discrimination action under the First or Fifth Amendments, as 8 discussed above, this argument does not extend and should not be applied to claims of deliberate 9 indifference under the Eighth Amendment. Starr, 2011 WL 477094. 10 11 b. Plaintiff’s Position Plaintiff argues that both Defendants Clark and Adams failed in their duties to properly 12 discipline and supervise Defendant McKesson which directly contributed to his excessive use of 13 force against Plaintiff. (Doc. 132, Opp. P&A, 1:23-2:8.) 14 Plaintiff argues that “[b]oth [Defendants] Adams and Clark were the ultimate supervisors 15 of [Defendant] McKesson during the time leading up to [Defendant] McKesson’s encounter with 16 Plaintiff. [Defendant] McKesson had been subject to numerous reports and investigations 17 involving accusations of excessive force and aggressive behavior. [Defendants] Adams and 18 Clark took no measures to properly exercise their supervisory responsibility regarding 19 [Defendant] McKesson. They were deliberately indifferent both by abdicating their 20 responsibilities to properly supervise [Defendant] McKesson and for failing to properly 21 discipline him when circumstances warranted real, meaningful, corrective discipline.” (Id., at 22 8:12-18.) 23 Plaintiff argues that “[s]upervisors may be liable where their participation in the 24 deprivation of a constitutional right is not direct but involved ‘the setting in motion of acts which 25 cause others to inflict constitutional injury.’” (Doc. 132, Opp. P&A, 8:19-24, quoting Larez v. 26 City of Los Angeles, 946 F.2d 630, 645 (1991); ref. Oona R.-S by Kate S. v. Santa Rosa City 27 Schools, 890 F.Supp. 1452 (N.D. Cal. May 2, 1995) (unpublished decision) (1983 claim satisfied 28 when defendant “in a supervisory capacity, took culpable action or wrongfully failed to act in the 15 1 2 training, supervision, or control of his subordinates”).) Plaintiff suggests that “[t]his liability need not stem from an affirmative act, but can be 3 the result of an abdication of a supervisory duty” (id., at 8:25-28, ref. Madrid v. Gomez, 889 4 F.Supp. 1146, 1249 (N.D. Cal. 1995) (prison officials liable for abdicating their duty to supervise 5 and monitor the use of force and deliberately permitting a pattern of excessive force to develop 6 and persist)) and that “[t]he continual failure to control and discipline officers that present a 7 danger can support a finding of deliberate indifference” (id., at 8:28-9:3, ref. Vann v. City of New 8 York, 72 F.3d 1040, 1051 (2d Cir. 1995) (inadequate monitoring of identified “problem” officers 9 could support liability). Plaintiff argues that his claims against Defendants Clark and Adams are 10 11 supported by several considerations. (Doc. 132, Opp. P&A, 9:4.) The first item Plaintiff presents for consideration is Defendant McKesson’s unstable 12 nature as demonstrated by the two incidents wherein he had confrontations with fellow prison 13 personnel. (Id., at 9:4-6; Doc. 132-2, PF Nos. 18-24; Ex. I, pp. 1355, 1364, 1547, 1549-1551; 14 Clark Dep. 65:12-24; McKesson Dep. 69:1-71:9.) Plaintiff argues that in both instances, the 15 evidence shows that Defendant McKesson “became aggressive and confrontational when he felt 16 he was being disrespected.” (Id., at 9:6-8.) Plaintiff’s evidence shows Defendant Clark, acting 17 under Defendant Adams’ delegated authority and on his own, combined these two instance (each 18 of which warranted disciplinary action) into one disciplinary action, such that Defendant 19 McKesson received only one letter of reprimand, which minimized the efficacy of the 20 disciplinary action and was particularly errant because a Threat Assessment Team had been 21 assembled to evaluate SATF’s risk from Defendant McKesson. (Id., at 9:8-10, 13-15, 18-20; 22 Doc. 132-2, PF Nos. 26-28; Ex. I, 1531-1541, 1549-1551; Clark Dep. 73:13-25.) Plaintiff argues 23 that, to deter future misconduct, repeated instances of misconduct should receive progressive 24 and increasingly severe discipline/punishment. (Id., at 9:10-17; Doc. 132-2 PF No. 99; Vasquez 25 Depo. 115:19-116:8.) Plaintiff argues that Defendant McKesson should have received one letter 26 of reprimand for the first incident and a more sever discipline for the second. (Id.) Plaintiff 27 argues that the combined punishment for two separate instances shows poor supervision and 28 discipline, as well as deliberate indifference to Plaintiff’s safety. (Id., at 9:19-21; Doc. 132-2, PF 16 1 Nos. 29-32; McKesson Dep. 77:25-78:6, Vasquez Dep. 101:8-102:22, 135:5-8, 138:24-139:3, 2 Ex. 4.) Plaintiff also argues that, until these two instances, both Defendants Clark and Adams 3 did little to punish Defendant McKesson’s misconduct. (Id., at 9:21-23.) 4 Second, Plaintiff argues that Defendant Adams did not properly discipline Defendant 5 McKesson in the Schmid incident. (Id., at 9:24-25; Doc. 132-2, PF Nos. 12-13; Ex. I, pp. 1418, 6 1419, 1421, 1788-1789; Vasquez Dep., 114:15-19, 120:12-121:9.) Plaintiff argues, based on his 7 expert’s testimony, that Defendant Adams should have appealed the denial of his request for a 8 Category II investigation instead of settling for a Category I investigation. (Id., at 9:24-28; Doc. 9 132-2, PF No. 14; Vasquez Dep., 114:15-19, 120:12-121:9.) 10 Plaintiff argues that the minimal punishment which Defendants Clark and Adams 11 imposed on Defendant McKesson equated to tacit approval of his conduct such that he continued 12 his errant behavior believing there would be no real consequences for his actions, which led to 13 the incident of which Plaintiff complains. (Id., at 10:1-6.) Plaintiff further argues that the failure 14 to impose more severe punishment by Defendant Clark and Adams encouraged an atmosphere of 15 aggressive conduct by correctional officers (i.e. Defendant McKesson). (Id., at 10:7-13.) 16 Plaintiff also argues that the numerous allegations against Defendant McKesson, even though 17 found to be unsubstantiated, should have put Defendants Clark and Adams “on notice that 18 [Defendant] McKesson posed a potential danger to inmates” and that any lack of awareness of 19 the incidents and investigations was an abdication of their responsibilities equating to deliberate 20 indifference and likely to cause constitutional violations. (Id., at 10:14-24.) Plaintiff deduces 21 that Defendants Clark and Adams were deliberately indifferent to Plaintiff’s safety since they did 22 little to discourage Defendant McKesson’s aggressive mannerisms and use of excessive force 23 when they failed to provided meaningful discipline to Defendant McKesson so as to make “clear 24 that conduct such as the excessive force used against Plaintiff was unacceptable and would be 25 punished severely.” (Id., at 11:6-11.) 26 Legally, Plaintiff argues that the ruling in Ashcroft v. Iqbal “reaffirmed the well-settled 27 rejection of respondeat superior liability,” but did not fundamentally abrogate the historical 28 standards of supervisor liability. (Doc. 149, Sur-Reply, 8:9-3:2.) Plaintiff argues that this 17 1 conclusion is supported by the fact that the holding in Ashcroft v. Iqbal did not address the 2 supervisor liability standards articulated by the Ninth Circuit and that there is no reason to 3 conclude an intent to eviscerate traditional supervisor liability standards or to assume the 4 restriction of any such definition to only include purposeful acts despite the dearth of specific 5 definition for the meaning of one’s “own misconduct.” (Id., at 3:2-22.) Plaintiff also argues that 6 Defendants’ errantly attempt to extend the word “purposeful” from the Supreme Court’s 7 discussion regarding First and Fifth Amendment violations to supervisor liability standards and 8 that, when properly construed, any such language merely reaffirms the inapplicability of 9 vicarious liability sans any requirement of purposeful action. (Id., at 4:2-19.) Plaintiff urges that 10 the “purpose” requirements of Ashcroft v. Iqbal apply only to claims of intentional discrimination 11 such as found in violations of the First and Fifth Amendments. (Id., at 6:9-7:20.) Plaintiff’s 12 suggests that, as to claims under the Eight Amendment, the Court in Ashcroft v. Iqbal, consistent 13 with both pre- and post-Ashcroft v. Iqbal Ninth Circuit precedent, “reaffirmed the proposition 14 that a supervisor may be liable for ‘his own neglect in not properly superintending the discharge 15 “of his subordinates” duties’ ” so as to allow “for liability for omissions when there was a duty to 16 supervise (a duty Defendants had as warden) and the defendants omission (failure to supervise or 17 discipline) resulted in a constitutional violation.” (Id., at 4:20-6:8, quoting Iqbal, 129 S.Ct. at 18 1948, citing Dunlop v. Monroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812).) 19 As the Ninth Circuit recently held, “[a] defendant may be held liable as a supervisor 20 under § 1983 ‘if there exists either (1) his or her personal involvement in the constitutional 21 deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and 22 the constitutional violation.’” Starr, at *4 quoting Hansen v. Black, 885 F.2d 642, 646 (9th 23 Cir.1989). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the 24 proximate cause of the injury. The law clearly allows actions against supervisors under section 25 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under 26 color of law of a federally secured right.” Id., quoting Redman v. County of San Diego, 942 F.2d 27 1435, 1447 (9th Cir. 1999) (internal quotation marks omitted). 28 “The requisite causal connection can be established . . . by setting in motion a series of 18 1 acts by others, or by knowingly refus[ing] to terminate a series of acts by others, which [the 2 supervisor] knew or reasonably should have known would cause others to inflict a constitutional 3 injury.” Id., quoting Redman, 942 F.2d at 1447, Dubner v. City & Cnty. of San Francisco, 266 4 F.3d 959, 968 (9th Cir. 2001) (alteration in original; internal quotation marks omitted). “A 5 supervisor can be liable in his individual capacity for his own culpable action or inaction in the 6 training, supervision, or control of his subordinates; for his acquiescence in the constitutional 7 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” 8 Id., quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998) (internal alteration 9 and quotation marks omitted). 10 11 12 c. Discussion The parties’ positions must be examined as to whether there exists a triable issue of material fact on either of two issues: 13 (1) whether Defendants Clark and Adams knew, or reasonably should have known, of 14 Defendant McKesson’s propensity for violence (via the various investigations into 15 accusations against him) which would cause future instances of Defendant McKesson 16 using excessive force such as the type Plaintiff claims caused him injury in this case; and 17 (2) whether Defendants Clark and/or Adams were able, but failed to take supervisory 18 and/or disciplinary actions towards Defendant McKesson, other than as actually occurred. 19 For analysis purposes, it is most illuminating to begin with the latter of these two inquiries. 20 21 1. Ability/Failure to Discipline The first issue to address is whether Defendants Clark and/or Adams had the ability to 22 have taken supervisory and/or disciplinary actions towards Defendant McKesson, other than as 23 actually occurred. 24 aa. Defendants’ Evidence 25 Defendants argue that policies and procedures restricted them from appealing the results 26 of an investigation that they disagreed with and that they could not discipline an officer when an 27 investigation came back unsubstantiated or lacking evidence. (Doc. 112-1, MSJ P&A, 8:1-18.) 28 It is undisputed that the warden can request an internal affairs investigation, but cannot 19 1 appeal the outcome of an investigation showing the allegations were unsustained. (Doc. 132-2, 2 Plntf. Rsp. to DUF No. 15; Clark Dep. 27:12-14; Adams Dep. 68:10-12.) It is also undisputed 3 that if allegations of staff misconduct are unsubstantiated after an investigation, the warden has 4 no authority to discipline the officer. (Id., DUF No. 16; Adams Dep. 57:12-58:14; 68:6-9.) 5 Defendants appear to rely on these two undisputed statements of fact in combination with the 6 number of investigations against Defendant McKesson that came back with results that the 7 allegations were unsubstantiated or lacked sufficient evidence to assert that they did everything 8 within their power under the circumstances to properly supervise and discipline Defendant 9 McKesson. (Exs. A, I.) 10 bb. Plaintiff’s Evidence 11 Plaintiff argues that Defendants Clark and Adams abdicated their responsibility to 12 properly supervise Defendant McKesson, and failed to properly discipline him when warranted. 13 (Doc. 132, Opp. P&A, 8:15-18.) 14 Plaintiff submitted evidence that Defendant Adams admits if the Internal Affairs office 15 came back with an investigation that Defendant Adams did not think was thorough, he had the 16 authority to tell them that they needed to look into it in greater depth. (Doc. 132-2, PF No. 87; 17 Ex. H, Adams Dep. - Singh Case 52:5-10.) Plaintiff also submitted evidence that Defendant 18 Clark has fired correctional officers for dishonesty, theft, felonies, and death of an inmate by 19 neglect. (Id., at PF No. 88; Clark Dep. 32:14-15.) 20 Via testimony from his expert witness, Plaintiff submits that: Defendants Clark and 21 Adams were negligent in not following through with disciplinary actions on Defendant 22 McKesson in the many incidents that he had been involved in (Doc. 132-2, PF No. 92; Vasquez 23 Dep. 27:20-28:1; 29:21-25); Defendants Clark’s and Adams’ deliberate indifference toward the 24 actions of Defendant McKesson resulted in Defendant McKesson continuing his behavior 25 towards inmates and ultimately resulted in injury that Defendant McKesson inflicted upon 26 Plaintiff (id., PF No. 93; Vasquez Dep. 54:15-25); Defendant Adams should have paid attention 27 to the incidents that were taking place and insisted that the institution investigator pay particular 28 attention to the issues that were being charged against Defendant McKesson and that an adequate 20 1 investigation be completed (id., PF No. 94; Vasquez Dep. 55:17-56:11); the warden is 2 responsible for ensuring that institution investigations be conducted appropriately, properly, and 3 adequately (id., PF NO. 95; Vasquez Dep. 56:12- 16); if a warden believes that an investigator 4 didn’t do an adequate job in the investigation, it is his or her responsibility to have a discussion 5 about it and possibly have the investigation redone (id., PF NO. 96; Vasquez Dep.122:25-123:4); 6 progressive disciplinary action should have been imposed against Defendant McKesson and may 7 have stopped Defendant McKesson’s inappropriate behavior (id., PF NO. 99; Vasquez Dep. 8 115:19-116:8); and, it is ultimately the warden’s responsibility to correct an officer’s behavior 9 when an officer uses excessive force (id., PF No. 100; Vasquez Dep. 140:5-9). Defendants 10 variously object that this evidence is either argumentative, misstates Mr. Vasquez’s deposition 11 testimony, and/or that it is merely Plaintiff’s expert witness’ opinion from spending ten to twenty 12 hours reviewing what he recalls as “pretty much all” of thousands of pages of documents before 13 testifying that Defendants Clark and Adams were negligent. (Doc. 142-1, PF Nos. 92-96, 99- 14 100.) An argumentative objection is appropriate at trial or in deposition, but not a summary 15 judgment where Plaintiff’s burden is to in fact argue against Defendants’ position. Any 16 interpretation of Plaintiff’s expert witness’ deposition is to be construed in Plaintiff’s favor when 17 opposing summary judgment. Further, whether Plaintiff’s expert witness reviewed every piece 18 of paper, or “pretty much all” of the thousands of pages of documents in this case goes to the 19 weight and/or credibility of his testimony and is properly left to the trier of fact. Accordingly, 20 Defendants’ objections should be overruled. 21 22 cc. Discussion Key to the decision on this motion is whether Defendants Clark and Adams had the 23 ability, but failed to impose greater punishment on Defendant McKesson relative to the 24 allegations of misconduct against him prior to the incident at issue in this action. This issue 25 when combined with the evidence submitted (and/or lack thereof), presents a dispute that is not 26 properly resolved at summary judgment. 27 28 Defendants present undisputed evidence that wardens of California prisons can request an internal affairs investigation, but cannot appeal the outcome of an investigation showing the 21 1 allegations were unsustained and had no authority to discipline an officer if allegations of staff 2 misconduct are unsubstantiated after an investigation. (Doc. 132-1, Plntf. Rsp to DUF Nos. 15, 3 16.) However, Plaintiff presents Defendant Adams’ admission in his deposition testimony in a 4 separate action that if the Internal Affairs office comes back with an investigation that he, as a 5 warden, thought was not thorough, he had the authority to tell them they needed to look into it in 6 greater depth. (Ex. H, Adams Dep. - Sing Case, 52:4-9.) Plaintiff also submitted evidence which 7 showed that Defendant Adams could have appealed a decision to deny his request of a Category 8 II investigation of a few claims against Defendant McKesson – apparently Defendant Adams did 9 not do so, but this is less than clear from the evidence submitted. (Ex. I, p. 1418; Vasquez Dep. 10 11 114:15-19; 120:12-121:9.) Neither party provided a definition or an explanation as to whether (and if so, how) an 12 “appeal” of an outcome of an internal affairs investigation differed from telling Internal Affairs 13 to look into an investigation in greater depth when they thought it was not thorough. Also, 14 neither party submitted any information as to the difference and/or steps between and requisite 15 criteria for a “Category I” and a “Category II” investigation. 16 The opposing submissions of evidence, and lack of clarification/definition/explanation 17 raise a triable issue of fact as to whether Defendants Clark and/or Adams could have requested 18 further investigation of accusations against Defendant McKesson when investigations found 19 claims against him to be unsubstantiated or lacking sufficient evidence. 20 Further, Plaintiff submitted evidence showing that Defendant Clark should not have 21 combined the discipline of Defendant McKesson for two instances of verbal confrontations with 22 a superior and a co-worker into a solitary letter of reprimand, when discipline as strict as 23 imposition of a pay cut was considered, and that in that paperwork, Defendant Clark referred to 24 Defendant McKesson as being less than truthful. (Doc. 132-2, PF Nos. 28-32; Ex. I, pp. 1531- 25 1541, McKesson Dep. 77:25-78:6; Vasquez Dep. 101:8-102:22; 135:5-8; 138:24-139:3 & Ex. 4.) 26 Defendants object to this evidence as irrelevant since it involved verbal confrontations between 27 Defendant McKesson and superior officers rather than instances involving accusations of 28 excessive force against an inmate; on the basis that Plaintiff’s expert witness opined that he 22 1 thought the letter of reprimand was done for the benefit of Defendant Clark, but did not opine 2 that he knew as much; and that whether Defendant Clark referred to Defendant McKesson as 3 being less than truthful was irrelevant to the issues in this case. (Doc. 142-1, Def. Obj. to PF No. 4 28-32.) However, the admission that Defendant Clark believed Defendant McKesson had been 5 less than truthful in an investigation where he verbally suggested physical confrontation to a 6 superior (i.e. “parking lot therapy”) gives way to the logical question and thus relevance of 7 inquiry as to whether Defendant Clark had basis to know, or should have known, that Defendant 8 McKesson had been less than truthful in other investigations of accusations of excessive force by 9 inmates against him such that investigations in greater depth should have been requested. 10 11 Accordingly, a triable issue of fact exists as to whether Defendants Clark and Adams had the ability to discipline Defendant McKesson more severely, but failed to do so. 12 2. 13 14 Knew or Reasonably Should Have Known aa. Defendants’ Evidence The main thrust of Defendants’ arguments upon which they urge a finding that they did 15 not know and reasonably should not have known of Defendant McKesson’s propensity to use 16 excessive force on inmates based on the various investigations against Defendant McKesson are 17 distilled into two statements: (1) good officers get accusations filed against them and (2) most of 18 the investigations found the allegations against Defendant McKesson were unsubstantiated or 19 lacked sufficient evidence. 20 Defendants Clark and Adams present the following evidence to support their argument: 21 It is undisputed that Defendant Adams was the warden at SATF from August 2000 until 22 December of 2005 and Defendant Clark was the warden at SATF from 2006 through 2008. 23 (Doc. 112-2, DUF Nos. 3, 4; Adams Dep. 10:7-16; Clark Dep. 9:2-5.) The warden does not 24 directly supervise correctional officers. While Plaintiff disputed this fact, he only did so 25 inasmuch as Defendant Clark testified that he did not personally supervise correctional officer, 26 which Plaintiff objected could not be generalized to all wardens. (Doc. 132-1, Plnt. Rsp. DUF 27 No. 7; Clark Dep. 18:2-8.) It is also undisputed that, in the chain of command at SATF, the 28 warden is at the top, followed by chief deputy wardens, associate wardens, facility captains, 23 1 correctional lieutenants, correctional sergeants and correctional officers. (Id., DUF No. 8; Clark 2 Dep. 18:13-18.) 3 It is further undisputed that roughly 1300 correctional officers and several thousand 4 inmates were at SATF during the time period relevant to Plaintiff’s complaint. (Id., DUF No. 9; 5 Adams Dep. 19:6-9, 35:8-13.) Due to the large size of the prison, Defendant Clark delegated a 6 number of matters to other staff at SATF. (Id., DUF No. 10; Clark Dep. 14:18-15:3.) Defendant 7 Clark did not read every Internal Affairs Report regarding staff misconduct that was referred to 8 him. (Id., DUF No. 11; Clark Dep. 42:22-43:7.) The warden is not informed when an inmate 9 files a grievance complaining about an officer, though he may be informed during the appeals 10 process. (Id., DUF No. 12; Clark Dep. 24:15-19, 24:23-25:7, 91:13-24.) SATF receives a 11 number of inmate grievances (easily possibly as many as one hundred), and if they reach the 12 second level of appeal and the Director’s level, they are screened by an administrative assistant. 13 (Id., DUF No. 13; Clark Dep. 89:7-10, 90:7-11, 19-22.) It is a very common practice for chief 14 deputy wardens, as designees of the warden, to review and respond to inmate grievances. (Id., 15 DUF No. 14; Clark Dep. 87:1-5, 89:7-10; 90:7-11.) 16 The Employee Relations Officer keeps track of ongoing investigations of CDCR 17 employees. (Id., DUF No. 17; Clark Dep. 30:18-21.) It is undisputed that Defendants Clark and 18 Adams recall Defendant McKesson as a “by the book” officer who enforced the rules and 19 followed regulations. (Id., DUF NO. 39; Clark Dep. 53:20-24, Adams Dep. 35:24-36:2.) 20 Officers can be doing their job “by the book” and still have grievances filed against them. (Id., 21 DUF NO. 40; Clark Dep. 102:9-12.) It is undisputed that just because an officer receives 22 complaints, does not necessarily mean he is not doing his job and that numerous SATF 23 correctional officers have been investigated by Internal Affairs several times. (Id., DUF Nos. 41, 24 42; Clark Dep. 47:17-20,102:21-22.) It is also undisputed that more than one Internal Affairs 25 investigation about the same correctional officer can mean that the officer is doing his job, and 26 that inmates are trying to pressure him not to do his job. (Id., DUF No. 43; Clark Dep. 27 47:21-48:4.) 28 It is further undisputed that Defendant Adams was detailed to locations other than SATF 24 1 at least ten times while he was the warden, sometimes for several months, including an 2 assignment in Sacramento from June 2005 through November 2005 (id., DUF NO. 44; Adams 3 Dep. 10:17-11:17) was rarely at SATF in 2005 (id., DUF NO. 45; Adams Dep. 79:2-13); was 4 detailed to another location and was not at SATF when two internal affairs investigation reports 5 involving Defendant McKesson were returned, and he is not sure who received the documents in 6 his absence (id., DUF No. 46; Adams Dep. 39:2-40:16, 48:13-49:3); and that Plaintiff’s 7 allegations of staff misconduct against Defendant McKesson were unsustained after an 8 investigation (id., DUF No. 47; R. Hall Dec. ¶ 4-A, Ex. B). 9 bb. 10 Plaintiff’s Evidence Plaintiff argues that Defendants Clark and Adams knew or reasonably should have known 11 of Defendant McKesson’s propensity to use excessive force because they were his ultimate 12 supervisors, and Defendant McKesson “had been subject to numerous reports and investigations 13 involving accusations of excessive force and aggressive behavior.” (Doc. 132, Opp. P&A, 8:12- 14 18.) 15 Plaintiff submits evidence which he suggests shows: a number of accusations against 16 Defendant McKesson for incidents which occurred before the date of the incident complained of 17 in this action (Doc. 132-2, PF. Nos. 4, 5, 6, 7, 8, 9, 11, 16, 17, 18, 21, 22, 23; McKesson Dep. 18 69:1-71:9, 68:8-22; Ex. I, pp. 1483, 1350, 1650-88, 1674, 1592-1612, 1702-1709, 1735, 1790- 19 1843, 1353, 1354, 1355, 1549-1551); that Defendant Adams was made aware of Defendant 20 McKesson’s proclivities on a number of occasions via memorandums, letters, and/or reports (id., 21 PF Nos. 10, 15, 20, 28; Ex. I, pp. 1735, 1925, 1364, 1531-1541); that Defendant Adams 22 requested investigations regarding Defendant McKesson (id., PF Nos. 12, 13; Ex. I, pp. 1418- 23 1419, 1421, 1788-1789); that Defendant Clark was made aware of Defendant McKesson’s 24 proclivities on a number of occasions via memorandums and/or letters (id., PF Nos. 19, 24, 25, 25 26; Clark Dep. 65:12-24, 69:7-24; Ex. I, pp. 1547, 1549-1551); and that Defendant Clark 26 requested investigations regarding Defendant McKesson (id., PF Nos. 26, 27; Clark Dep. 73:13- 27 25; Ex. I, pp. 1549-1551). Defendants object to this evidence as inadmissible hearsay and 28 character evidence; that its probative value is outweighed by the danger of unfair prejudice that it 25 1 is likely to engender; that some of it is too remote in time to be relevant; that most of the 2 accusations were found to be unsubstantiated or lacking sufficient evidence; and that there is no 3 proof that either Defendant Clark or Adams ever received or were aware of a number of the 4 accusations. (Doc. 142-1, Obj. to PF Nos. 4-11, 15-28.) There is no statement as to any rules 5 and/or law relied on as the basis for these objections. However, assuming that they intended to 6 raise these objections under Rules of Evidence 401, 403, and 404, the Court deems this evidence 7 to be relevant, probative, and goes to the weight rather than the admissibility of evidence as to 8 whether Defendants Clark and Adams were aware of and/or could have requested and/or 9 obtained further investigation(s) when findings of unsubstantiated or lacking evidence were 10 returned, all of which goes to the question of whether Defendants Clark and Adams knew, or 11 reasonably should have known of Defendant McKesson’s propensities to utilize excessive force. 12 As to the hearsay objections, these past complaints, investigations, reports and recommendations 13 are not offered for the truth of the detailed facts of the incidents themselves but rather the 14 cumulative fact that the complaints were made in the first instance and conclusions were reached 15 of which the wardens were or should have been aware. These defense objections are overruled. 16 Plaintiff submits evidence that Defendant Clark considered issuing Defendant McKesson 17 a 10% pay cut, but entered a stipulation with the California Peace Officers Association to issue a 18 letter of reprimand to Defendant McKesson for his conduct in two instances of inappropriate 19 comments and or verbal confrontations with superior officers. (Doc. 132-2, PF Nos. 29-31, 20 McKesson Dep. 77:25-78:6; Vasquez Dep. 101:8-102:13, 135:5-8, 138:24-139:3 & dep. Ex. 4.) 21 Defendants object to this evidence arguing that it lacks foundation and is irrelevant because 22 Defendant Clark’s decision to impose one form of discipline over another for an unrelated issue 23 (verbally suggesting physical confrontation, i.e. “parking lot therapy” with superiors) neither 24 proves or disproves a failure to properly supervise and/or discipline Defendant McKesson. (Doc. 25 142-1, Obj. to PF Nos. 29-31.) However, a warden’s knowledge of a prison guard verbally 26 confronting and suggesting physical confrontation to his superior officers, at the summary 27 judgment stage, appears relevant as to whether the warden knew or reasonably should have been 28 aware of that officer’s proclivities towards violence -- particularly against an inmate. 26 1 Plaintiff also submitted evidence regarding incidents involving Defendant McKesson 2 which occurred subsequent to March 6, 2006 and various of Defendant Clark’s responses thereto. 3 (Doc. 132-2, PF Nos. 32-39.) Defendants object to all of this evidence as irrelevant since it 4 occurred after the date in question in this action such that it does not tend to prove or disprove 5 that either Defendant Clark or Defendant Adams failed to properly supervise or discipline 6 Defendant McKesson so as to lead to the incident on March 6th. These objections are properly 7 sustained. 8 Plaintiff submits undisputed evidence that: it was part of Defendant Adams’ 9 responsibility as warden to be aware of officers who had an unusually large number of 602 10 complaints (Doc. 32-2, PF No. 80; Ex. H, Adams Dep. - Singh Case, 36:18-22); at some point 11 Defendant Adams became concerned about Defendant McKesson’s behavior in relation to 12 inmates, but doesn’t know when that was (id., at PF No. 81; Ex. H, Adams Dep. - Singh Case 13 37:23-25; 38:1-3); Defendant Adams testified, “Everything is black and white to Officer 14 McKesson. There are no gray areas. A piece of tape is contraband; food is contraband; a 15 weapon is contraband. [Defendant] McKesson doesn’t differentiate.” (id., at PF No. 82); when 16 Defendant Adams became concerned about Defendant McKesson, he opened up at least one 17 investigation on him (id., at PF No. 83; Ex. H, Adams Dep. - Singh Case 38:20-23); Defendant 18 Adams has admitted that reviewing any previous Internal Affairs investigations of Defendant 19 McKesson would have been prudent if or when Defendant Adams was contemplating bringing 20 disciplinary actions against McKesson (id., at PF No. 84; Ex. H, Adams Dep. - Singh Case 21 39:12-18); in answer to the question, “What you’re saying is that you would assume that as part 22 of your responsibilities when you contemplated conducting an investigation of [Defendant] 23 McKesson, that you would go back and look at his previous IA investigations at SATF?” 24 Defendant Adams responded “Yes.” (id., PF No. 85; Ex. H, Adams Dep. - Singh Case 40:7-12); 25 the warden at SATF has the authority to look at a correctional officer’s personnel file (id., at PF 26 No. 86); 27 28 cc. Discussion Defendants move for summary judgment relying solely on the fact that the vast majority 27 1 of investigations of allegations against Defendant McKesson yielded findings that they were 2 unsubstantiated or lacked sufficient evidence, coupled with their proposition that Defendants 3 Adams and Clark could not have appealed any such findings. However, as discussed herein 4 above, a dispute exists as to whether Defendants Clark and/or Adams could have obtained further 5 inquiry when an investigation into allegations against Defendant McKesson came back 6 unsubstantiated or lacking of sufficient evidence. Since it is not established that all 7 investigations into allegations against Defendant McKesson had been as thorough as possible, 8 and/or that all such avenues had been fully vetted, it is also not established that the findings of 9 unsubstantiated or lacking evidence are sufficient to show that Defendants Clark and Adams did 10 not know, or should not reasonably have been aware of Defendant McKesson’s propensities to 11 utilize excessive force when dealing with inmates. Accordingly, Defendants Clark and Adams 12 are not entitled to summary judgment on Plaintiff’s claims against them for their failure to 13 supervise and/or discipline Defendant McKesson. 14 15 2. Training A supervisor’s failure to train subordinates can give rise to individual liability under 16 Section 1983 where the supervisor’s failure amounts to deliberate indifference to the rights of 17 persons with whom the employees are likely to come into contact. See Canell v. Lightner, 143 18 F.3d 1210, 1213-14 (9th Cir.1998) (to prevail on claim that supervisor violated plaintiff's 19 constitutional rights by failing properly to train subordinate, plaintiff must show that failure 20 amounted to deliberate indifference). For liability to attach in this circumstance, Plaintiffs must 21 show that the training of the subordinate was inadequate and that the inadequacy of the training 22 was the result of a deliberate or conscious choice on the part of Vasquez. Id., at 1214. Also, the 23 identified training deficiency must be causally connected to the ultimate injury. City of Canton v. 24 Harris, 489 U.S. 378, 391 (1989). In other words, to impose liability, Plaintiffs are required to 25 show that the inadequate training actually caused the constitutional violation and that the 26 violation would have been avoided had the employees been properly trained. Id., at 389-91; Lee 27 v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001) (citations and internal quotations 28 omitted). 28 1 Defendants argue that neither Defendant Clark nor Defendant Adams had a role in 2 determining the standardized use-of-force training provided to CDCR correctional officers such 3 as Defendant McKesson. (Doc. 112-1, Def. P&A, 7:15-17.) Additionally, Plaintiff has produced 4 no evidence that Defendant McKesson received inadequate training. (Id., at 7:17-18.) Even if he 5 did, without specific evidence that Defendants Clark and/or Adams were aware of alleged 6 training deficiencies with respect to Defendant McKesson, or that these alleged training 7 deficiencies created an excessive risk to inmate safety, they cannot be held liable for Plaintiff’s 8 injuries. (Id., at 7:18-21.) In the absence of concrete evidence of problems relating to Defendant 9 McKesson’s training, Defendant Clark and Defendant Adams had no “duty to change either 10 [their] supervising chain of command or statewide training requirements or materials.” (Id., at 11 7:21-24 quoting Jeffers, 267 F.3d at 916.) 12 In his opposition, Plaintiff did not meet his burden as to any inadequacies in Defendant 13 McKesson’s training as he neither submitted any argument, nor cited to any authority to suggest 14 that Defendants Clark and Adams had any involvement in, or liability for, inadequacies therein. 15 It is undisputed that wardens have “no role in determining the type of training received by 16 correctional officers during the training academy or the mandatory annual training courses.” 17 (Doc. 132-1, Plntf. Resp. To DUF No. 36.) Since Defendants Clark and Adams, as wardens, had 18 no role in determining the type of training received by Defendant McKesson, a correctional 19 officer, they have no liability for any inadequacies therein. 20 B. 21 Government officials enjoy qualified immunity from civil damages unless their conduct Qualified Immunity 22 violates “clearly established statutory or constitutional rights of which a reasonable person would 23 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity is ‘an 24 entitlement not to stand trial or face the other burdens of litigation.’ ” Saucier v.Katz, 533 U.S. 25 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), overruled on other 26 grounds by Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818 (2009)). In applying the 27 two-part qualified immunity analysis, it must be determined whether, “taken in the light most 28 favorable to [Plaintiff], Defendants’ conduct amounted to a constitutional violation, and . . . 29 1 whether or not the right was clearly established at the time of the violation.” McSherry v.City of 2 Long Beach, 560 F.3d 1125, 1129-30 (9th Cir.2009). The second prong asks whether the right 3 was clearly established such that a reasonable officer in those circumstances would have thought 4 her or his conduct violated the alleged right. Saucier, 533 U.S. at 201; Inouye v. Kemna 504 F.3d 5 705, 712 n.6 (9th Cir. 2007). These prongs need not be addressed by the Court in any particular 6 order. Pearson, 129 S.Ct. at 818. “The relevant, dispositive inquiry . . . is whether it would be 7 clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” 8 Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010) ref. Saucier, 533 U.S. at 201-02. 9 In 2006, the law on supervisory liability was clearly established. See Dubner, 266 F.3d at 10 968; Watkins, 145 F.3d at 1093; Hansen, 885 F.2d at 646; Redman, 942 F.2d at 1447. When the 11 applicable facts are taken in the light most favorable to Plaintiff they show, as discussed in 12 greater detail herein above, that Defendants Clark and Adams failed to supervise and/or 13 discipline Defendant McKesson which resulted in Plaintiff’s injury in violation of the Eight 14 Amendment. Defendants Clark and Adams are not entitled to qualified immunity on Plaintiff’s 15 claims that they failed to properly supervise and discipline Defendant McKesson. 16 C. 17 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with Exhaustion of Administrative Remedies 18 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 19 confined in any jail, prison, or other correctional facility until such administrative remedies as are 20 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 21 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 22 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the 23 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 24 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 25 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 26 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense 27 under which the defendants have the burden of raising and proving the absence of exhaustion. 28 Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to 30 1 exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court 2 may look beyond the pleadings and decide disputed issues of fact. Morton v. Hall, 599 F.3d 942, 3 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has 4 failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; 5 Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005); see also Ritza v. Int’l Longshoremen’s 6 & Warehousemen’s, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam) (“ ‘In ruling on a motion for 7 summary judgment the court should not resolve any material factual issue . . . . If there is such 8 an issue it should be resolved at trial . . . . On the other hand, where a factual issue arises in 9 connection with a jurisdictional or related type of motion, the general view is that there is no 10 right of jury trial as to that issue . . . and that the court has a broad discretion as to the method to 11 be used in resolving the factual dispute.’ Moore’s Federal Practice, supra, ¶ 56.03 at 56-61 12 (footnotes omitted); cf. Thornhill Publishing Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 13 733 (9th Cir.1979) (‘Faced with a factual attack on subject matter jurisdiction, “the trial court 14 may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56. . . . [N]o presumptive 15 truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will 16 not preclude the trial court from evaluating for itself the merits of jurisdictional claims” ’ 17 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n., 549 F.2d 884, 891 (3d Cir.1977) (footnote 18 omitted)))”); see also Wyatt, 315 F.3d at 1119-20 (if the Court concludes that the prisoner has 19 failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice). 20 Accordingly, if Defendants’ motion is granted based on Plaintiff’s failure to exhaust the available 21 administrative remedies prior to filing suit, Defendants would not be entitled to summary 22 judgment, but rather would be entitled to dismissal of Plaintiff’s claims against them without 23 prejudice. 24 The CDCR has an administrative grievance system for prisoner complaints. Cal. Code 25 Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR Form 602 26 either of which are commonly referred to an “inmate appeal” or a “602.” Id., at § 3084.2(a). 27 Four levels of appeal are involved, including the informal level, first formal level, second formal 28 level, and third formal level, also known as the “Director’s Level.” Id. at § 3084.5. 602s must be 31 1 submitted within fifteen working days of the event being appealed, and the process is initiated by 2 submission of the appeal to the informal level, or in some circumstances, the first formal level. 3 Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are 4 required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 5 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. 6 7 1. Discussion Plaintiff is proceeding against Defendants Clark and Adams for failing to supervise 8 and/or discipline Defendant McKesson. Defendants Clark and Adams move for dismissal of 9 Plaintiff’s claims against them, relying on the declaration of Appeals Coordinator R. Hall and 10 exhibits attached thereto, arguing that none of the eleven inmate appeals that Plaintiff filed while 11 at SATF “pertained to any failure to train, supervise, or discipline a correctional officer,” and, as 12 such, “Plaintiff failed to exhaust those administrative remedies which were available to him with 13 respect to his claim that [Defendants Clark and Adams] failed to train, supervise, and discipline 14 [Defendant] McKesson.” (Doc. 112-1, MSJ, 9:1-10:4.) 15 Plaintiff opposes by arguing that, since Defendants Clark and Adams previously moved 16 for dismissal of Plaintiff’s claims for failure to exhaust administrative remedies which was 17 ultimately denied without defense objections to the findings and recommendations having be 18 filed, the law of the case doctrine precludes this Court from reconsidering the issue. (Doc. 132, 19 Plntf. Opp. P&A, 11:21-12:10.) Further, Plaintiff argues that, even if the law of the case does 20 not act as a procedural bar, he exhausted his supervisory liability claims such that this action 21 should not be dismissed.14 (Doc. 132, Plntf. Opp. P&A, 12:11-13:28.) 22 “The law of the case doctrine is a judicial invention designed to aid in the efficient 23 operation of court affairs.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 24 (9th Cir.1990). Application of the law of the case doctrine is discretionary. See United States v. 25 14 26 27 28 Plaintiff objects to the declaration of R. Hall as he has never been identified as a witness (lay or expert) through disclosures or in discovery and may of the statements in his declaration constitute improper opinion testimony. (Doc. 132, Plntf. Opp. P&A, p. 12, fn. 2.) However, this objection need not be reached as Hall’s declaration is unnecessary and is not considered. Rather, Plaintiff’s inmate appeals are reviewed to see whether the verbiage utilized therein was sufficient to have given prison administrators notice of Plaintiff’s claim that Defendant McKesson’s actions warranted supervision and/or discipline. 32 1 Mills, 810 F.2d 907, 909 (9th Cir.1987). The doctrine “is not dispositive, particularly when a 2 court is reconsidering its own judgment, for the law of the case ‘directs a court’s discretion, it 3 does not limit the tribunal’s power.’ ” Gonzales v. Arizona, 624 F.3d 1162, 1186 (9th Cir. 2010); 4 quoting Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 469 (9th Cir.2000) (quoting 5 Arizona v. California, 460 U.S. 605, 618 (1983)). The Ninth Circuit has “identified three 6 exceptional circumstances in which . . . the concerns of finality and efficiency [were] outweighed 7 [by the need to avoid manifest injustice]. Law of the case should not operate as a constraint on 8 judicial review where ‘(1) the decision is clearly erroneous and its enforcement would work a 9 manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) 10 substantially different evidence was adduced at a subsequent trial.’ ” Gonzales, 624 F.3d at 11 1185-87 (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997) (en banc) (Kozinski, J., 12 dissenting) (citing cases), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) 13 (internal quotation marks and footnote omitted).) Though Plaintiff raised the law of the case 14 doctrine in his opposition, Defendants failed to address any of the applicable elements either in 15 their motion or reply. It appears that, under the law of the case doctrine, Defendants would argue 16 that ruling on their motion to dismiss (Doc. 41), if allowed to stand, would work manifest 17 injustice in as much as they claim that the evidence they submit in support of the present motion 18 shows that Plaintiff did not exhaust his administrative remedies on his claims against them. 19 However, when the evidence submitted on the issue is reviewed it reveals that Plaintiff’s 20 602s contained sufficient information to have placed prison officials on notice of his claims that 21 Defendant McKesson’s actions warranted greater supervision and/or discipline than was being 22 applied at the time. 23 While Defendants submitted copies of a number of inmate appeals Plaintiff submitted, 24 one (SATF 06-01022 “hereinafter IA 1022”) pertains to the events at issue in this action. (Doc. 25 113-2, Exs. to Hall Dec.) In IA 1022, Plaintiff complains of the events which occurred on March 26 6, 2006 involving his glue sticks and the encounter with Defendant McKesson. (Doc. 113-2, at 27 pp. 421-449; Doc. 2, Not. Lodg. to Compl., Ex. J, pp. 50-57, Ex. K, pp. 64-66.) At the first level, 28 which Plaintiff signed on March 11, 2006, Plaintiff stated that “C/O McKesson, really need [sic] 33 1 to be counseled about his aggression and need [sic] to be seen by a professional for his anger 2 management (Immediately) and this matter above [sic] investigated.” (Id., at p. 427, 449; Doc. 2, 3 Ex. J, p. 57.) IA 1022 was granted at the first level. (Id., at 424; Doc. 2, Ex. J., p. 56.) At the 4 second level, Plaintiff sought to “know disciplinary actions taken against C/O McKesson & that 5 he be given anger management course, on [sic] job training in policy & procedures & conduct.” 6 (Id., at p. 424; Doc. 2, Ex. J., p. 56.) At the third level, Plaintiff once again sought to “know 7 disciplinary actions taken against C/O McKesson & that he be given a [sic] anger management 8 course. On [sic] job training on Inst., Policy & Procedure & Conduct.” (Doc. 2, Ex. J., p. 56.) 9 Defendants argue that Plaintiff did not exhaust his claims against Defendants Clark 10 and/or Adams in IA 1022 because he did not insinuate that he had issues with the prison wardens 11 in the first two levels (Doc. 142, Def. Reply, 7:6-11) and while Plaintiff requested monetary 12 compensation, anger management training, and on-the-job training for McKesson at the third 13 level, these requests were not addressed since they were not part of the original appeal (Id., at 14 7:11-14, ref Doc. 2, Not. Lodg. to Compl., at 65-66). Plaintiff argues that the relief sought in his 15 initial grievance that Defendant McKesson be counseled about his aggression; that he needed to 16 immediately be seen by a professional for his anger management; and that the matter be 17 investigated was, though stated in very simple language, Plaintiff’s request that appropriate 18 supervisory officials take action by counseling Defendant McKesson and investigating his 19 conduct, and that these requests were repeated and slightly more focused at the second and third 20 levels. (Doc. 132, Opp. P&A, 12:12-13:4.) 21 “Exhaustion is not per se inadequate simply because an individual later sued was not 22 named in the grievances.” Jones, 549 U.S. at 219. “The PLRA requires exhaustion of ‘such 23 administrative remedies as are available,” 42 U.S.C. § 1997e(a), but nothing in the statute 24 imposes a ‘name all defendants’ requirement.” Id., at 217. Defendants admit as much. (Doc. 25 Def. Reply, 6:24-7:2.) Accordingly, IA 1022 was not insufficient for not having identified either 26 Defendant Clark or Adams therein. 27 28 Where a prison’s grievance procedures are silent, a prisoner’s allegations will suffice if they notify the prison of a problem as “[t]he primary purpose of a grievance is to alert the prison 34 1 to a problem and facilitate its resolution, not to lay groundwork for litigation.” Griffin v. Arpaio 2 557 F.3d 1117, 1122 (9th Cir. 2009), ref Johnson v. Johnson, 385 F.3d at 522, as cited with 3 approval in Jones, 549 U.S. at 219. A grievance need not include legal terminology or legal 4 theories unless they are in some way needed to provide notice of the harm being grieved. Griffin, 5 557 F.3d at 1120. A grievance also need not contain every fact necessary to prove each element 6 of an eventual legal claim. Id. “[W]hen a prison’s grievance procedures are silent or incomplete 7 as to factual specificity, ‘a grievance suffices if it alerts the prison to the nature of the wrong for 8 which redress is sought.’” Id., citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). “The 9 primary purpose of a grievance is to notify the prison of a problem and facilitate its resolution, 10 not to lay groundwork for litigation.” Id., ref Johnson, 385 F.3d at 522 cited with approval in 11 Jones, 549 U.S. at 219. A grievance need not be extremely specific as it need only “‘provide 12 enough information, . . . to allow prison officials to take appropriate responsive measures.’” Id., 13 quoting Johnson v. Testman, 380 F.3d 691, 697 (2d. Cir. 2004). 14 As stated at the first level of IA 1022, Plaintiff’s request that Defendant McKesson be 15 counseled about his aggression, that Defendant McKesson immediately see a professional for his 16 anger management, and that the matter be investigated were sufficient to alert the prison of the 17 problem with Defendant McKesson’s anger and use of force and Plaintiff’s desires for Defendant 18 McKesson’s supervisors to take action. It matters not that Plaintiff did not use the words “train,” 19 “supervise,” or “discipline.” Plaintiff clearly requested action that could only be taken by those 20 in positions of supervision over Defendant McKesson. Plaintiff pursued IA 1022 to the final 21 level, though he need not have done so as it was granted at every level. See Harvey v. Jordan, 22 605 F.3d 681, 684-85 (9th Cir. 2010) (finding prisoner had exhausted where his inmate appeal 23 received a “partial grant” of his first request – “An inmate has no obligation to appeal from a 24 grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative 25 remedies”). Thus, in IA 1022, Plaintiff exhausted his claims against Defendants Clark and 26 Adams, or any other persons in a position of authority over Defendant McKesson. 27 28 Accordingly, applying the law of the case doctrine would not cause a manifest injustice as Plaintiff exhausted his administrative remedies prior to filing this action. Defendants Clark and 35 1 Adams request for summary judgment based on Plaintiff failing to exhaust his administrative 2 remedies against them is properly denied. 3 V. 4 Conclusions and Recommendations Accordingly, this Court finds that Defendants Clark and Adams have not met their burden 5 and are not entitled to summary judgment on the merits and are not entitled to qualified 6 immunity on Plaintiff’s claims that they failed to properly train, supervise and/or discipline 7 Defendant McKesson so as to result in a violation of Plaintiff’s constitutional rights. Further, 8 Plaintiff properly exhausted his administrative remedies prior to filing this suit. 9 As set forth herein, the Court HEREBY RECOMMENDS that Defendants Clark and 10 Adams are not entitled to judgment as a matter of law such that their Motion for Summary 11 Judgment, filed December 3, 2010 (Docs. 112, 113), should be DENIED. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 fourteen (14) days after being served with these Findings and Recommendations, the parties 15 may file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 17 objections within the specified time may waive the right to appeal the District Court’s order. 18 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 Dated: icido3 February 16, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 36

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