(PC) Sharp v. Morrison et al, No. 1:2007cv00458 - Document 60 (E.D. Cal. 2010)
Court Description: MEMORANDUM of Decision and Order, signed by Senior Judge Stephen M. McNamee on 7/19/10: Defendants' Motion for Summary Judgment 51 is granted; The Amended Complaint is dismissed without prejudice. The Clerk of Court is directed to terminate this matter. (CASE CLOSED) (Hellings, J)
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ANTONIO SHARP, 10 Plaintiff, 11 vs. 12 A.D. MORRISON, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 1:07-00458-PHX-SMM MEMORANDUM OF DECISION AND ORDER 15 16 Before the Court is Defendants A.D. Morrison, J. McNutt, M.P. Hernandez, and A. 17 Coronado s Motion for Summary Judgment (Doc. 51), filed on September 24, 2009. 18 Pursuant to the Court s Second Informational Order, Motion to Dismiss Notice, and 19 Summary Judgment Notice (Doc. 20), Plaintiff was advised of the need to file a response to 20 motions. No response has been filed by Plaintiff to date. 21 Default summary judgment is not proper unless movant s papers are sufficient to 22 support the motion, or the movant s papers on their face reveal no genuine issue of material 23 fact. Henry v. Gill Indus., Inc., 983 F.2d 943, 949-50 (9th Cir. 1993); United States v. Real 24 Prop. Located at Incline Vill., 47 F.3d 1511, 1520 (9th Cir. 1995) overruled on other grounds 25 by Degen v. U.S., 517 U.S. 820 (1996). For this reason, the Court will evaluate Defendants 26 Motion for Summary Judgment on the merits. After consideration, the Court grants summary 27 judgment for Defendants and dismisses the Amended Complaint based on Heck v. 28 Humphrey, 512 U.S. 477 (1994). FACTUAL BACKGROUND 1 2 Plaintiff Antonio Sharp ( Plaintiff ) filed a claim pursuant to 42 U.S.C. § 1983 against 3 Correctional Sergeant A.D. Morrison ( Morrison ), and Correctional Officers J. McNutt 4 ( McNutt ), M.P. Hernandez ( Hernandez ), and A. Coronado ( Coronado ) (collectively 5 referred to as Defendants ). Plaintiff alleges that Defendants used excessive force against 6 him on June 11, 2005, and violated his Eighth Amendment right to be free from cruel and 7 unusual punishment. Defendants deny that they violated Plaintiff s constitutional rights. 8 They argue that Heck v. Humphrey bars Plaintiff s claims due to Plaintiff s failure to file a 9 writ of habeas corpus to overturn the rules violation he received as a result of the June 11, 10 2005 incident. 11 Plaintiff was incarcerated at California State Prison-Corcoran during the events of 12 June 11, 2005 (Doc. 51, Defs. Statement of Undisputed Facts ( DUF ) ¶ 1). Defendants 13 were correctional officers at CSP-Corcoran. Plaintiff maintains1 that on the morning of June 14 11, 2005, Defendants used excessive force on him as he was walking back from the Facility 15 Chow Hall to his housing unit with a friend (DUF ¶¶ 2, 4). His friend was selected for a 16 random search so Plaintiff walked slowly to wait for him (DUF ¶5). Defendant Officer 17 Coronado, in 3B Observation Tower, ordered Plaintiff to keep walking, to which Plaintiff 18 19 20 21 22 23 24 25 26 27 28 1 Although Plaintiff has not responded to Defendants Motion for Summary Judgment, Defendants statement of facts is based on Plaintiff s deposition, and thus, considers the facts in the light most favorable to him. Defendants stipulate to the statement of undisputed facts for purposes of summary judgment. (Mem. of P. & A. in Supp. Of Defs. Mot. for Summ. J. 2 n.1, DUF 1 n.1). Because Plaintiff verified his Amended Complaint under penalty of perjury, the Court will treat it as an affidavit for purposes of summary judgment pursuant to Federal Rule of Civil Procedure 56(e). A verified complaint may be treated as an affidavit to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify. Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (citing Runnels v. Rosendale, 499 F.2d 733, 734 n.1 (9th Cir. 1974). For Plaintiff s version of facts, the Court has relied on Plaintiff s verified Amended Complaint and his deposition which do not differ materially from one another. -2- 1 responded that he was (DUF ¶6). After Officer Coronado again ordered Plaintiff to continue 2 walking, Officer McNutt approached Plaintiff and grabbed his right arm, pulling him into the 3 area where inmates are searched (DUF ¶¶ 6-7). In response, Plaintiff pulled away from 4 Officer McNutt (DUF ¶7). A physical altercation ensued and both Plaintiff and Officer 5 McNutt ended up on the ground (DUF ¶8). Plaintiff maintains that he was not resisting and 6 was proned out, face down, when Officer McNutt started punching him in the face and 7 kneeing him in the back (DUF ¶10). 8 The only officer Plaintiff is able to identify that used force on him is Officer McNutt 9 (DUF ¶12). Officer Coronado was in the tower and it is undisputed that he was not able to 10 leave his post during the incident (DUF ¶13, Doc. 51, Attach. 1, Sharp Dep. 61:14-22). 11 Because Plaintiff was face down on the ground, he is unsure which Officers arrived to the 12 scene (DUF ¶11). However, since Plaintiff had seen Officers Morrison and Hernandez near 13 the scene prior to falling to the ground, he believes that they and Officer Coronado had the 14 ability to see what was going on and should have intervened (Doc. 51, Attach. 1, Sharp Dep. 15 61:14-22, 71:17-72:12, 72:13-16). Officers Morrison and Hernandez maintain that they did 16 not observe any excessive force used, but if they had, they would have intervened to stop it 17 or at least report it (DUF ¶18). 18 Defendants present a different picture of what transpired between themselves and 19 Plaintiff. Officer McNutt observed Plaintiff ignore Officer Coronado s command to continue 20 walking (Doc. 51, McNutt Decl. ¶ 3). Officer McNutt attempted to tell Plaintiff to return to 21 the gym and Plaintiff responded with a vulgar statement (Doc. 51, McNutt Decl. ¶ 4). 22 Officer McNutt then attempted to escort Plaintiff to the area where clothed body searches are 23 conducted (DUF ¶ 7). Instead of complying, Plaintiff resisted and attempted to strike Officer 24 McNutt s face (Doc. 51, McNutt Decl. ¶¶ 6-9). After Plaintiff s second attempt to strike 25 Officer McNutt, Officer McNutt forced Plaintiff to the ground and with the help of Officer 26 Hernandez holding Plaintiff s leg down, handcuffed him (Doc. 51, McNutt Decl. ¶¶ 9-11, 27 Doc. 51, Hernandez Decl. ¶ 4). Officers who observed this incident maintain that excessive 28 -3- 1 force was not used in restraining Plaintiff (Doc. 51, Coronado Decl. ¶ 8, Doc. 51, Hernandez 2 Decl. ¶ 5). 3 As a result of this incident, Plaintiff was issued a Rules Violation Report ( RVR ) 4 and found guilty of attempted battery on a peace officer (DUF ¶¶19-20). The bases for the 5 finding of guilt were Plaintiff s attempt to strike Officer McNutt (reported by Officer 6 McNutt), Officers Coronado and Hernandez s statements claiming that Plaintiff was 7 resisting, and testimony of a fellow inmate denying seeing staff hit Plaintiff (DUF ¶21). 8 Although Plaintiff pled not guilty and claimed that he did not strike Officer McNutt, the 9 hearing officer found that eyewitness accounts refuted Plaintiff s statement (Doc. 51, Hill 10 Decl. ¶ 14). Plaintiff lost 150 days of behavioral credit (DUF ¶20). Plaintiff did not seek to 11 overturn the RVR by filing a writ of habeas corpus (DUF ¶22). Plaintiff claims that 12 Defendants used excessive force on him during the June 11, 2005 incident. He seeks money 13 damages under § 1983 for subjecting him to cruel and unusual punishment. 14 PROCEDURAL BACKGROUND 15 This § 1983 action, first filed on March 22, 2007, is proceeding on Plaintiff s 16 Amended Complaint filed on July 2, 2007 (Doc.10). On June 11, 2008, the Court dismissed 17 the following claims for failure to state a claim upon which relief could be granted: equal 18 protection, inmate appeal process, retaliation, § 1985, § 1986, and due process (Doc. 13). 19 Excessive force is the only remaining claim (Id.). The Court also dismissed four defendants, 20 W.J. Hill, J. Jones, M. Pilkerton, and L. Cano, for failure to state a claim upon which relief 21 could be granted against them (Id.). On July 16, 2008, Magistrate Judge M. Snyder issued 22 a second informational order, specifically advising Plaintiff of the possibility of Defendants 23 requesting summary judgment and what he may do to oppose the motion (Doc. 20).2 24 On November 25, 2008, Chief Judge Anthony W. Ishii reassigned the case to this 25 Court (Doc. 32). On April 16, 2009, Plaintiff moved to transfer (Doc. 37), which was denied 26 2 27 This Second Informational Order included the required warnings under Rand v. Roland, 154 F.3d 952 (9th Cir. 1998). 28 -4- 1 by the Court (Doc. 55). The Court s Order, however, was returned as Undeliverable, 2 Refused. Plaintiff s second motion for transfer on April 20, 2009 is the last the Court, and 3 the Defendants, have heard from him (Doc. 38). On September 24, 2009, Defendants moved 4 for Summary Judgment (Doc. 51). No response has been received from Plaintiff to date. 5 In reviewing the record in this case, the Court notes that Plaintiff s address was 6 updated on May 19, 2009 (Doc. 41). His current address is listed as R.J. Donovan 7 Correctional Facility, P.O. Box 799002, San Diego, CA, 92179. Despite this change in 8 address, the Court also notes that Defendants continued to serve several motions and 9 response to motions to Plaintiff s prior address (Doc. 42, 46, 48, 51-53).3 One of the 10 documents that was erroneously mailed to Plaintiff s prior address was Defendants summary 11 judgment motion (Doc. 51).4 Accordingly, the Court gave Plaintiff an additional thirty days, 12 until June 23, 2010, to file a response in opposition to summary judgment (Doc. 56).5 The 13 Court also reiterated to Plaintiff the consequences of not responding. Moreover, Defendants 14 re-sent Plaintiff a copy of their summary judgment motion, this time to the correct address 15 (Doc. 57). Therefore, Plaintiff has received notice of Defendants motion, but has chosen 16 not to respond. STANDARD OF REVIEW 17 18 A court must grant summary judgment if the pleadings and supporting documents, 19 viewed in the light most favorable to the nonmoving party, show that there is no genuine 20 issue as to any material fact and that the moving party is entitled to judgment as a matter of 21 22 3 23 24 25 26 27 28 The certificates of service attached show the address as R.J. Donovan Correctional Facility, P.O. Box 799001, San Diego, CA, 92179. 4 Despite seemingly being sent to the incorrect address, defense counsel filed a Declaration stating that the summary judgment motion was returned to his office stamped Return to Sender and contained handwriting that Inmate Refused Mail. (Doc. 54) Thus, Plaintiff may have still received Defendants summary judgment motion initially, and simply chosen not to respond. 5 This Court Order also was returned as Undeliverable, Refused on July 9, 2010. -5- 1 law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 2 Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law 3 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 4 (1986); see also Jesinger, 24 F.3d at 1130. Only disputes over facts that might affect the 5 outcome of the suit under the governing law will properly preclude the entry of summary 6 judgment. Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the 7 evidence must be such that a reasonable jury could return a verdict for the nonmoving 8 party. Id.; see Jesinger, 24 F.3d at 1130. 9 A principal purpose of summary judgment is to isolate and dispose of factually 10 unsupported claims. Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 11 against a party who fails to make a showing sufficient to establish the existence of an 12 element essential to that party's case, and on which that party will bear the burden of proof 13 at trial. Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 14 1994). The moving party need not disprove matters on which the opponent has the burden 15 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment 16 need not produce evidence "in a form that would be admissible at trial in order to avoid 17 summary judgment." Id. at 324. However, the nonmovant may not rest upon the mere 18 allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing 19 that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., 20 Ltd. v.Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint 21 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). 22 DISCUSSION 23 In determining whether Plaintiff s claim for damages under § 1983 is barred by Heck, 24 the critical issue is whether a judgment for Plaintiff on his excessive force claim would imply 25 the invalidity of the guilty finding of attempted battery. In Heck, the Supreme Court held 26 that, where a judgment in favor of the plaintiff in a civil rights action would necessarily 27 imply the invalidity of his conviction or sentence, he must first show that the conviction or 28 sentence has been reversed on direct appeal, expunged by executive order, declared invalid -6- 1 by an authorized state tribunal, or called into question by the issuance of a writ of habeas 2 corpus. 512 U.S. at 486-87. Absent such a showing of invalidation of the conviction or 3 sentence, the plaintiff s complaint must be dismissed. Id. at 487. If the plaintiff s action will 4 not demonstrate the invalidity of the plaintiff s conviction or sentence, however, the §1983 5 action should move forward. Id. 6 A prisoner cannot use § 1983 to challenge the fact or duration of his confinement. 7 Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). Even when a § 1983 action does not seek 8 damages directly attributable to conviction or confinement, Heck bars those actions whose 9 successful prosecution would necessarily imply that the conviction or sentence was invalid. 10 Edwards v. Balisok, 520 U.S. 641, 646 (1997). Heck also applies to prison disciplinary 11 hearings. Id. at 648. In Edwards, the § 1983 claim was barred by Heck because the hearing 12 officer s alleged due process violation of concealing witness statements and refusing to ask 13 Plaintiff s requested questions to the witnesses would imply that the deprivation of 14 behavioral credits was invalid. Id. at 644, 648. 15 An important touchstone in deciding whether Heck will apply to bar a § 1983 claim 16 for damages is whether [plaintiff] could prevail only by negating an element of the offense 17 of which he has been convicted. Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 18 2003) (citing Heck, 512 U.S. at 487 n.6). In circumstances where the conviction or sentence 19 arise from the same acts as the alleged unconstitutional conduct, Heck requires that the 20 conviction or sentence be invalidated prior to commencing the § 1983 action. Smithart v. 21 Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam) (Heck not applicable because 22 Plaintiff s assault conviction stemming from his attempt to run over Sheriff with his truck 23 arose from facts separate from the alleged excessive force used during the arrest and would 24 not be invalidated by the excessive force holding). 25 Defendants argue that summary judgment is appropriate under Heck because success 26 on Plaintiff s § 1983 excessive force claim would imply that the RVR finding of guilt was 27 invalid (Doc. 51, Mem. of P. & A. in Supp. of Defs. Mot. for Summ. J. 7:6-12). Thus, 28 Plaintiff cannot proceed in the absence of securing habeas relief from the guilty finding. -7- 1 Plaintiff, however, claims that Defendants used excessive force on him (Am. Compl. ¶ 46). 2 Plaintiff further alleges that he was passive and did nothing to resist Defendants efforts to 3 restrain him (Am. Compl. ¶¶ 14-21). According to Plaintiff, it was Officer McNutt who was 4 the aggressor while Plaintiff was the victim (Id.). Yet, this theory is contrary to what was 5 determined in the disciplinary hearing where Plaintiff was found guilty of attempted battery. 6 Correctional Captain W.J. Hill based the guilty finding on Plaintiff s attempts to strike 7 Officer McNutt, Plaintiff s resisting and kicking as witnessed by Officer Hernandez, and 8 another inmate s testimony that he did not see staff hitting Plaintiff (Doc. 51, Hill Decl. ¶ 9 14). Although Plaintiff pled not guilty and claimed that he did not strike Officer McNutt, the 10 hearing officer found Plaintiff s statement refuted (Id.). 11 For the Court now to find that excessive force was used by the officers would be 12 contrary to the disciplinary hearing determination that Plaintiff was guilty of attempted 13 battery. Similarly, a finding that Officers Morrison, Coronado, and Hernandez should have 14 intervened would necessarily imply that excessive force was used and render the RVR 15 invalid. Indeed, to allow Plaintiff to proceed with an action for money damages against 16 Defendants requires the Court to find that the decision of the disciplinary hearing was 17 incorrect. Plaintiffs s theory of being the victim would invalidate the bases underlying the 18 RVR which found that Plaintiff was the aggressor. Plaintiff s remedy was to proceed by writ 19 of habeas corpus, not a § 1983 action. CONCLUSION 20 21 Since success on Plaintiff s § 1983 claim necessarily implies that the finding of guilt 22 for attempted battery was invalid, Heck bars the claim. 512 U.S. at 487. Because Plaintiff 23 has not invalidated his conviction, either by reversal on direct appeal, expungement by 24 executive order, declaration of invalidity by state tribunal, or habeas corpus, the Court grants 25 summary judgment for Defendants. Id. Since the Court grants summary judgment pursuant 26 to Heck, it does not address Defendants alternative arguments. Plaintiff s Amended 27 Complaint will be dismissed. 28 /// -8- 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (Doc. 3 4 5 6 51) is granted. IT IS FURTHER ORDERED that the Amended Complaint is dismissed without prejudice. The Clerk of Court is directed to terminate this matter. DATED this 19th day of July, 2010. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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