(PC) Pulliam v. Lozano et al, No. 1:2007cv00964 - Document 91 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS for Denial of Defendants' 62 Motion for Summary Judgment; Fourteen-Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 11/29/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/17/2012. (Sant Agata, S)
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(PC) Pulliam v. Lozano et al Doc. 91 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 JOSEPH R. PULLIAM, CASE NO. 1:07-cv-0964-LJO-MJS PC 8 Plaintiff, FINDINGS AND RECOMMENDATIONS FOR DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 9 v. 10 M. LOZANO, et al., (ECF No. 62) 11 Defendants. FOURTEEN-DAY OBJECTION DEADLINE 12 / 13 14 15 I. 16 PROCEDURAL HISTORY Plaintiff Joseph R. Pulliam, a state prisoner proceeding pro se, filed this civil rights 17 action pursuant to 42 U.S.C. § 1983 on July 5, 2007. The action proceeds on Plaintiff’s 18 claim that while he was incarcerated at Kern Valley State Prison in Delano, California, 19 Defendants Lozano and Mason used excessive physical force against him in violation of his 20 rights under the Eighth Amendment to the United States Constitution. (ECF Nos. 23 & 25.) 21 On July 14, 2011, Defendants Lozano and Mason filed a motion for summary 22 judgment. (Defs.’ Mot. Summ. J., ECF No. 62.) After the Court granted Plaintiff’s request 23 for an extension of time to respond, Plaintiff filed an opposition, but protested it was still 24 incomplete because he had difficulty obtaining facts and information from Defendants 25 Lozano and Mason and from third parties. (Pl.’s Opp’n, No. 66.) Defendants filed a reply. 26 (Defs.’ Reply, ECF No. 69.) 27 Plaintiff had filed a motion for a subpoena duces tecum (ECF No. 55), which the 28 Court granted in part and ordered the Warden of Kern Valley State Prison to produce 1 Dockets.Justia.com 1 specified information by December 7, 2011 (ECF Nos. 68 & 71). After the December 7, 2 2011, deadline for the Warden’s response to Plaintiff’s subpoena, the Court ordered 3 Plaintiff to file an opposition or statement of non-opposition. (ECF No. 74.) After 4 requesting and obtaining additional time, Plaintiff filed a second opposition on March 14, 5 2012. (Pl.’s First Supplemental Opp’n, ECF No. 78.) Defendants filed a second reply on 6 March 29, 2012. (Defs.’ First Supplemental Reply, ECF No. 81.) 7 Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Rand v. Rowland, 8 154 F.3d 952 (9th Cir. 1998), the Court notified Plaintiff of his rights, obligations and 9 methods for opposing Defendants’ motion for summary judgment. (ECF No. 83.) After 10 several extensions, Plaintiff filed a second supplemental opposition on October 4, 2012. 11 (Pl.’s Second Supplemental Opp’n, ECF No. 89.) 12 supplemental reply. (Defs.’ Second Supplemental Reply, ECF No. 90.) Defendants filed a second 13 The Court has considered all papers filed in support of and in opposition to the 14 motion for summary judgement, and, for the reasons set forth below, recommends that 15 the motion be denied. 16 II. FACTUAL BACKGROUND 17 Plaintiff alleges that on April 21, 2006, Defendant Lozano, a correctional 18 officer, informed Plaintiff that he was being moved to a different cell. (Pl.’s Decl., ECF No. 19 65 at ¶¶ 4, 6.) Plaintiff told Defendant Lozano he was reluctant to move to the other cell 20 because of concerns about his proposed new cell-mate, a perceived friend or relative of 21 a documented enemy. (Id. at ¶ 12.) Defendant Lozano was not responsive to Plaintiff’s 22 concerns. (Id. at ¶ 13.) Another inmate also attempted, without success, to convince 23 Defendant Lozano that Plaintiff’s new cell-mate was a danger to Plaintiff. (Id. at ¶¶ 15- 24 16.) After Defendant Lozano refused to change his decision to move Plaintiff, Plaintiff 25 packed his personal property and secured himself in a shower. (Id. at ¶ 17.) Defendant 26 Lozano moved Plaintiff’s property to the new cell and asked that the shower door be 27 opened. (Id. at ¶ 21.) Defendant Lozano told Plaintiff to “turn around and cuff up,” which 28 2 1 Plaintiff immediately did.1 (Id. at ¶¶ 23-24.) Plaintiff asked to speak with the sergeant. 2 (Id. at ¶ 24.) Defendant Lozano refused Plaintiff’s request, and before Defendant Lozano 3 could finish handcuffing Plaintiff’s right wrist, Plaintiff saw Defendant Mason running 4 towards him and shouting for Plaintiff to get down. (Id. at ¶ 26.) Plaintiff laid down on the 5 shower floor.2 (Id. at ¶ 27.) Defendant Mason jumped on Plaintiff’s back, smashed 6 Plaintiff’s face and head into the floor and caused Plaintiff’s nose and mouth to bleed. 7 (Id.) Plaintiff was dazed and disoriented. (Id.) Plaintiff next remembers Defendant Mason 8 laying astride Plaintiff’s back and Defendant Lozano kneeing Plaintiff’s head and face. 9 (Id. at ¶ 28.) Additional prison staff responded to the situation, Defendant Lozano placed 10 a spit mask over Plaintiff’s face, and other prison staff members placed leg restraints on 11 Plaintiff. (Id. at ¶¶ 31-34.) Plaintiff gave a video-recorded statement after the incident. 12 (Id. at ¶¶ 40-41.) 13 Plaintiff also has made the following statement: 14 I Plaintiff Joseph R. Pulliam, do solemnly declare, that I did not kick Defendant L. Mason on the shin. That any injuries Defendant L. Mason may have sustained was caused by Defendant when Mason, full of momentum and malice, jumped on my back while I was laying down on the shower floor flat on my stomach. I did not refuse any order(s) to go to my cell, because no such order(s) were ever given to me by Defendant M. Lozano. I did not strike Defendant M. Lozano on the left shoulder with my right clenched fist, or otherwise engage either of the Defendants in any of the alleged resistive combative behavior. 15 16 17 18 19 (Pl.’s Decl. at ¶ 45.) Plaintiff was issued a CDCR 115 Rules Violation Report on March 23, 2006, in 20 21 1 Defendant Lozano concurs with Plaintiff’s allegation that Plaintiff complied with Defendant 22 Lozano’s order to “cuff up”. (Lozano Decl., ECF No. 62 at ¶ 3.) However, Defendant Lozano also alleges that when he was trying to handcuff Plaintiff, he saw Plaintiff’s “right hand clenched into a fist aiming for 23 his facial area.” (Id.) Defendant Lozano turned with Plaintiff, tried to block Plaintiff’s right fist, but Plaintiff struck him in his left shoulder. (Id.) Defendant Lozano ordered Plaintiff to lie on the ground, but Plaintiff 24 refused to comply. (Id.) 25 26 27 28 2 According to both Defendants Lozano and Mason, Plaintiff was combative and refused to obey orders. (Lozano Decl. at ¶¶ 3-6; Mason Decl. at ¶ 3-7.) After the unsuccessful handcuffing attempt, both Defendants tried to force Plaintiff to the ground, but continued to struggle, and all three of them ended up on the floor of the “B” section lower tier shower. (Id.) Plaintiff landed on his stomach, Defendant Mason landed on Plaintiff’s back, and Defendant Lozano landed on his knee and left elbow. (Lozano Decl. at ¶ 6; Mason Decl. at ¶ 7.) Plaintiff also kicked Defendant Mason on her left shin during this struggle. (Mason Decl. at ¶ 7.) 3 1 which Defendant Lozano stated that Plaintiff had refused to follow his orders, became 2 combative, hit him in the left shoulder, and kicked Defendant Mason. (Id. at ¶¶ 42-43.) 3 Defendant Mason also filed an incident report corroborating Defendant Lozano’s 4 allegations. (Id. at ¶ 44.) 5 Plaintiff was ultimately found guilty of battery on a peace officer but, oddly, did not 6 forfeit good time credits for battery. (Minnatee Decl., ECF No. 62 at ¶ 4.) Instead Plaintiff 7 was assessed a credit loss of 150 days for “assault on a non-inmate with physical force 8 insufficient to cause serious injury.” (Anderson Decl., ECF No. 62 at Attach. 1.) Neither 9 party has explained this discrepancy. Defendants omit to explain how, as they assert in 10 their motion papers, Plaintiff lost good time credits for assault when he was found guilty 11 of battery. Moreover, instead of submitting a full copy of the Rules Violation Report, 12 Defendants include one which lacks committee findings and then add a summary by a 13 witness who reviewed the complete document. (See Lozano Decl. at Attach A and 14 Minnatee Decl.) 15 III. LEGAL STANDARD 16 Any party may move for summary judgment, and the Court shall grant summary 17 judgment if the movant shows that there is no genuine dispute as to any material fact and 18 the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation 19 marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). 20 Each party’s position, whether it be that a fact is disputed or undisputed, must be 21 supported by (1) citing to particular parts of materials in the record, including but not 22 limited to depositions, documents, declarations, or discovery; or (2) showing that the 23 materials cited do not establish the presence or absence of a genuine dispute or that the 24 opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 25 56(c)(1) (quotation marks omitted). While the Court may consider other materials in the 26 record not cited to by the parties, it is not required to do so. Fed. R. Civ. P. 56(c)(3); 27 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 28 As the moving parties, Defendants bear the initial burden of proving the absence 4 1 of a genuine dispute of material fact. In re Oracle Corp. Securities Litigation, 627 F.3d 2 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) 3 (quotation marks omitted). Because Plaintiff bears the burden of proof at trial, Defendants 4 need only prove that there is an absence of evidence to support Plaintiff’s case. In re 5 Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 326) (quotation marks omitted). 6 If Defendants meet their initial burden, the burden shifts to Plaintiff to designate specific 7 facts demonstrating the existence of genuine issues for trial. Id. (citing Celotex, 477 U.S. 8 at 324). However, Plaintiff need not file any countervailing declarations or other materials 9 if Defendants’ papers are insufficient on their face to demonstrate the lack of any material 10 issue of fact. Kaiser Cement Corp. v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103-04 11 (9th Cir. 1986); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (quotation marks 12 omitted). 13 In resolving Defendants’ motion for summary judgment, all of the evidence must 14 be viewed in the light most favorable to Plaintiff as the non-moving party, Garcia v. County 15 of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); Hunt v. City of Los Angeles, 638 F.3d 16 703, 709 (9th Cir. 2011), and all reasonable inferences must be drawn in his favor, LVRC 17 Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009); Pinard v. Clatskanie School 18 Dist. 6J, 467 F.3d 755, 763 (9th Cir. 2006). Further, Plaintiff’s papers are treated more 19 indulgently since he is the nonmoving party. Lew, 754 F.3d at 1423. 20 IV. DISCUSSION 21 Defendants move for summary judgment on several grounds. They claim: a 22 finding in Plaintiff’s favor would necessarily invalidate his prison disciplinary conviction and 23 loss of time credits and therefore Plaintiff’s must seek habeas corpus relief in lieu of 24 proceeding with this action; Plaintiff’s Eighth Amendment claim fails because Defendants’ 25 conduct was reasonable and Plaintiff only sustained de minimis injuries; and, Defendants 26 are entitled to qualified immunity. 27 Plaintiff argues that his claim is not barred because he is not seeking relief from the 28 finding of guilt in the Rules Violation Report and he is not challenging the fact or duration 5 1 of his confinement. He maintains that Defendants are not entitled to qualified immunity 2 and that his version of events disputes Defendants’. (Pl.’s First Supplemental Opp., ECF 3 No. 78 at 2-4.) 4 A. 5 It has long been established that state prisoners cannot challenge the fact or 6 duration of their confinement in a § 1983 action; their sole remedy in such cases lies in 7 habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the 8 favorable termination rule, this exception to § 1983’s otherwise broad scope applies 9 whenever state prisoners “seek to invalidate the duration of their confinement - either 10 directly through an injunction compelling speedier release or indirectly through a judicial 11 determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 12 544 U.S. at 81 (emphasis added). Thus, “a state prisoner’s § 1983 action is barred 13 (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no 14 matter the target of the prisoner’s suit (state conduct leading to conviction or internal 15 prison proceedings) - if success in that action would necessarily demonstrate the invalidity 16 of confinement or its duration.” Id. at 81-2. Heck v. Humphrey, 512 U.S. 477, 489 (1994) 17 (until and unless favorable termination of the conviction or sentence occurs, no cause of 18 action under § 1983 exists). 19 20 Heck Bar Plaintiff argues that his case does not challenge the duration of his confinement but only seeks monetary damages. (Pl.’s First Supplemental Opp. at 2.) 21 Defendants’ evidence regarding the disciplinary outcome of the incident is 22 confusing. Defendants allege that Plaintiff ultimately was found guilty of battery on a 23 peace officer (Minnatee Decl. at ¶ 4), but fail to provide a final Rules Violation Report to 24 that effect. Instead they provide a document stating that Plaintiff was assessed a credit 25 loss of 150 days for assault, not battery, on a non-inmate. (Anderson Decl. at Attach. 1.) 26 Plaintiff is currently serving a definite sentence of 44 years. (Id.) 27 In the underlying incident, Plaintiff was accused of hitting Defendant Lozano, failing 28 to obey orders, and kicking Defendant Mason. (Pl. Decl. at ¶¶ 42-43.) It appears Plaintiff 6 1 ultimately was found guilty of assault, an offense which does not require physical 2 touching. The court might assume that the assault was a lesser included offense on the 3 charge of battery, but summary judgment is to be determined on the basis of evidence, 4 not assumption. The admissible evidence before the Court at this time (and excluding 5 hearsay descriptions of the content of documents) creates a dispute as to what caused 6 the loss of the good time credits - an assault or a battery– and so the Court cannot find 7 as a matter of law that Plaintiff here seeks a remedy which would require invalidation of 8 the reason for the loss of good time credit. 9 Plaintiff’s claim would only be barred by the favorable termination rule if a finding 10 in his favor on the claim would necessarily imply the invalidity of the disciplinary 11 conviction. Wilkinson, 544 U.S. at 81-2; Edwards v. Balisok, 520 U.S 641, 80-81 (1997). 12 A finding that Defendants’ use of force was unprovoked and constituted excessive force 13 would not necessarily imply the invalidity of a disciplinary finding that Plaintiff committed 14 an assault on an officer. The Court does not find that Plaintiff’s excessive force claim is 15 barred by the favorable termination rule. 16 17 18 19 20 21 22 23 24 25 26 27 B. De Minimis Injuries Do Not Bar an Eighth Amendment Claim for Excessive Force “What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue....” Hudson v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim is ... contextual and responsive to contemporary standards of decency.” Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries). However, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes from 28 7 1 constitutional recognition de minimis uses of physical force, provided that the use of force 2 is not of a sort repugnant to the conscience of mankind.” Id. at 9–10 (internal quotations 3 marks and citations omitted). 4 “[W]henever prison officials stand accused of using excessive physical force in 5 violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is ... 6 whether force was applied in a good-faith effort to maintain or restore discipline, or 7 maliciously and sadistically to cause harm.” Id. at 7. “In determining whether the use of 8 force was wanton and unnecessary, it may also be proper to evaluate the need for 9 application of force, the relationship between that need and the amount of force used, the 10 threat reasonably perceived by the responsible officials, and any efforts made to temper 11 the severity of a forceful response.” Id. (internal quotation marks and citations omitted). 12 “The absence of serious injury is ... relevant to the Eighth Amendment inquiry, but does 13 not end it.” Id. 14 Defendants contend that the force used was not excessive and Plaintiff only 15 suffered de minimis injuries. (Defs.’ Mem. P. & A. Support Mot. Summ. J., ECF No. 62-1, 16 at 10.) The evidence submitted by the defense supports these conclusions. However, 17 on a motion for summary judgment the evidence of the opposing party is to be taken as 18 true, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and all reasonable 19 inferences that may be drawn from the facts placed before the court are to be drawn in 20 favor of the opposing party, LVRC Holdings LLC, 581 F.3d at 1136. 21 Here, Plaintiff alleges that he was not resisting Defendants’ orders, no force was 22 necessary, Defendant Lozano placed handcuffs excessively tightly and Defendant Mason 23 slammed Plaintiff’s head to the floor causing bleeding. (Pl.’s Decl. at ¶¶ 24-27, 45.) 24 Drawing all reasonable inferences in favor of Plaintiff as the opposing party, the Court 25 finds that there is a genuine dispute of material fact as to whether Defendants’ use of 26 force was de minimis. Defendants’ motion for summary judgment on this ground should 27 be denied. 28 8 1 C. 2 Defendants contend that they are entitled to qualified immunity. (Defs.’ Mem. P. 3 Qualified Immunity & A. Support Mot. Summ. J. at 10-12.) 4 Government officials enjoy qualified immunity from civil damages unless their 5 conduct violates “clearly established statutory or constitutional rights of which a 6 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 7 In ruling upon the issue of qualified immunity, one inquiry is whether, taken in the light 8 most favorable to the party asserting the injury, the facts alleged show the defendant's 9 conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001), 10 overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009) (“Saucier procedure should 11 not be regarded as an inflexible requirement”). The other inquiry is whether the right was 12 clearly established. Saucier, 533 U.S. at 201. The inquiry “must be undertaken in light 13 of the specific context of the case, not as a broad general proposition ....” Id. “[T]he right 14 the official is alleged to have violated must have been ‘clearly established’ in a more 15 particularized, and hence more relevant, sense: The contours of the right must be 16 sufficiently clear that a reasonable official would understand that what he is doing violates 17 that right.” Id. at 202 (citation omitted). In resolving these issues, the court must view the 18 evidence in the light most favorable to plaintiff and resolve all material factual disputes in 19 favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified 20 immunity protects “all but the plainly incompetent or those who knowingly violate the law.” 21 Malley v. Briggs, 475 U.S. 335, 341 (1986). 22 The facts taken in the light most favorable to Plaintiff indicate a violation of 23 Plaintiff's rights under the Eighth Amendment, as stated above. Such rights were clearly 24 established at the time of the incident. See, e.g., Whitley v. Albers, 475 U.S. 312, 320–21 25 (1986) (excessive force); Estelle v. Gamble, 429 U.S. 97, 105, 97 (1976) (deliberate 26 indifference to a serious medical need). 27 V. 28 CONCLUSION AND RECOMMENDATION For the reasons set forth herein, the Court RECOMMENDS that Defendants’ 9 1 motion for summary judgment, filed on July 14, 2011, be DENIED. 2 These Findings and Recommendations will be submitted to the United States 3 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 4 636(b)(l). 5 Recommendations, the parties may file written objections with the Court. The document 6 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 7 A party may respond to another party’s objections by filing a response within fourteen 8 (14) days after being served with a copy of that party’s objections. The parties are 9 advised that failure to file objections within the specified time may waive the right to 10 Within fourteen (14) days after being served with these Findings and appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 IT IS SO ORDERED. 12 13 Dated: ci4d6 November 29, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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