-GGH (TEMP)(PC) McDowell v. Bishop, et al, No. 2:2006cv02145 - Document 118 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 02/08/11 recommending that defendant Ginder's motion for summary judgment 97 be granted with respect to plaintiff's first amendment claim and denied without pre judice to renewal at pretrial conference with respect to plaintiff's 8th amendment claim. Plaintiff be ordered to file an amended pretrial statement concerning all remaining defendants and claims within 30 days of an order adopting the foregoin g findings and recommendations. Defendants should be ordered to file their pretrial statement within 21 days of service of plaintiff's. Motion for Summary Judgment 97 referred to Judge Morrison C. England Jr. Objections due within 14 days.. (Plummer, M)
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-GGH (TEMP)(PC) McDowell v. Bishop, et al Doc. 118 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANNY MCDOWELL, 11 Plaintiff, 12 13 No. CIV S-06-2145 MCE GGH (TEMP) P vs. J.L. BISHOP, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of 17 civil rights under 42 U.S.C. § 1983. Defendant Ginder (defendant) is employed by the California 18 Department of Corrections and Rehabilitation at High Desert State Prison (HDSP) as a 19 correctional officer. Defendant’s motion for summary judgment is before the court. Plaintiff’s 20 claims against defendant Ginder arise under the First and Eighth Amendments. See November 21 20, 2009 Order. 22 I. Summary Judgment Standard 23 Summary judgment is appropriate when it is demonstrated that there exists “no 24 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 25 matter of law.” Fed. R. Civ. P. 56(c). 26 ///// 1 Dockets.Justia.com 1 Under summary judgment practice, the moving party 2 4 always 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. 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 6 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 7 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 8 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 9 after adequate time for discovery and upon motion, against a party who fails to make a showing 10 sufficient to establish the existence of an element essential to that party’s case, and on which that 11 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 12 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 13 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 14 whatever is before the district court demonstrates that the standard for entry of summary 15 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 3 16 If the moving party meets its initial responsibility, the burden then shifts to the 17 opposing party to establish that a genuine issue as to any material fact actually does exist. See 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 19 establish the existence of this factual dispute, the opposing party may not rely upon the 20 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 21 form of affidavits, and/or admissible discovery material, in support of its contention that the 22 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 23 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 24 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 25 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 26 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 2 1 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 2 1436 (9th Cir. 1987). 3 In the endeavor to establish the existence of a factual dispute, the opposing party 4 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 5 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 6 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 7 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 8 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 9 committee’s note on 1963 amendments). 10 In resolving the summary judgment motion, the court examines the pleadings, 11 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 12 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 13 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 14 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 15 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 16 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 17 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 18 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 19 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 20 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 21 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 22 On January 30, 2008 the court advised plaintiff of the requirements for opposing a 23 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 24 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. 25 Eikenberry, 849 F.2d 409 (9th Cir. 1988). 26 ///// 3 1 II. Plaintiff’s Allegations1 2 Plaintiff asserts that on March 25, 2005 at HDSP, defendant and others attacked 3 plaintiff in retaliation for his filing prisoner grievances and threatening to file grievances. 4 Plaintiff alleges defendant, among other things, “slammed him to the floor,” slammed his face 5 against plaintiff’s cell door, slammed plaintiff’s head onto the railing on a stairway, dropped 6 plaintiff on his face and placed restraints on plaintiff that were so tight they cut into his skin. As 7 a result of these actions, plaintiff sustained injuries including a broken right elbow. 8 III. Eighth Amendment 9 Defendant admits that he used physical force against plaintiff on March 25, 2005, 10 but denies that the amount of force used violated plaintiff’s Eighth Amendment rights. In order 11 to establish excessive force in violation of the Eighth Amendment, plaintiff must show that he 12 has been subjected to the wanton and unnecessary infliction of pain. Whitley v. Albers, 475 U.S. 13 312, 319 (1986). The Ninth Circuit has relied on the following factors in determining whether an 14 officer’s application of force was undertaken in a good faith or maliciously and sadistically to 15 cause harm: 1) the extent of the injury suffered by an inmate; 2) the need for application of force; 16 3) the relationship between that need and the amount of force used; 4) the threat reasonably 17 perceived by the responsible officials; and 5) any efforts made to temper the severity of a forceful 18 response. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 19 Both parties have submitted declarations concerning the events of March 25, 20 2005. The parties agree that at the beginning of the incident, plaintiff was seated in a chair in an 21 office at HDSP wearing physical restraints, defendant and others assisted in delivering plaintiff 22 from the office to his cell and, at the end of the relevant events, plaintiff was left in his cell with 23 the restraints having been removed. The parties disagree as to what happened during the transfer 24 from the office to plaintiff’s cell. 25 26 1 The operative complaint was filed on May 29, 2007 (docket entry #15). 4 1 Plaintiff asserts that during the incident defendant: 2 1. Snatched plaintiff from the ground by handcuffs attached to plaintiff. 3 2. Participated in dropping plaintiff on his face while transporting him. 4 3. Participated in twisting plaintiff’s wrists, arms and ankles causing him extreme 5 pain. 6 7 4. Participated in pushing plaintiff to the floor causing plaintiff to hit his face and lips. 8 9 5. Caused injuries to plaintiff’s elbow and bleeding. Pl’s Decl. at ¶¶ 4-5.2 10 Defendant denies that he ever struck plaintiff in any gratuitous manner. Rather, 11 defendant indicates that he simply assisted other officers in returning plaintiff to his cell because 12 plaintiff failed to return to his cell under his own power by going “limp.” Def.’s Decl. at ¶¶ 5-21. 13 Defendant submits other evidence in support of his version of the events including a DVD. 14 Officer E. Lopez declares the DVD is a copy of a recording he made onto an 8mm tape of the 15 transfer of plaintiff from the office to his cell. While the recording essentially supports 16 defendant’s version of the events occurring March 25, 2005, the court does not consider it. 17 Under Federal Rule of Evidence 1002, the court can only consider a video 18 recording as proof that the events depicted actually occurred if the recording is the original 19 recording. Under Rule 1003, the court can consider a duplicate in the same manner it can 20 consider an original as long as there is no genuine question raised as to the authenticity of the 21 original. Plaintiff asserts that he has never been allowed to see the original recording of his being 22 transported to his cell and that the DVD that has been provided to the court is essentially a fraud. 23 On December 20, 2010, the court ordered defendant to allow plaintiff the opportunity to view the 24 2 25 26 Plaintiff submits other evidence in support of exhibits. None of the exhibits are admissible because, among other things, they have not been authenticated as required by Federal Rule of Evidence 901. To the extent the court does not discuss evidence presented by plaintiff, the court has not considered it. 5 1 original if it could be found. On January 31, 2011, counsel for defendant indicated that the 2 original was found, but, due to logistical issues, plaintiff had not been allowed to view it. 3 Considering plaintiff has never been allowed to see the original recording of the events of March 4 25, 2010, he has not been given an adequate opportunity to make an objection under Rule 1003 5 to the DVD before the court. 6 After considering all the admissible evidence before the court, the court finds 7 there is genuine issue of material fact as to whether defendant used excessive force against 8 plaintiff on March 25, 2005. Essentially, and without consideration of the video, it is plaintiff’s 9 word against the word of prison officials as to whether the facts alleged by plaintiff in support of 10 his excessive force claim are true and the court cannot find that plaintiff’s version is so 11 unreasonable that a rational trier of fact could not find in his favor. 12 The undersigned will reconsider this finding at pretrial conference if plaintiff has 13 been afforded an opportunity to review the original. If plaintiff has been so afforded this 14 opportunity, the court will view the authenticated copy subject to specific objection by plaintiff. 15 Plaintiff is advised that a general conclusion that the copy of the video is a “fraud,” will not 16 suffice. Plaintiff must detail what about the copy makes it a fraud. 17 III. First Amendment 18 As indicated above, plaintiff alleges that the force used against him by defendant 19 on March 25, 2005 was in retaliation for plaintiff filing prisoner grievances, and threatening to 20 file grievances. Prison officials generally cannot retaliate against inmates for exercising First 21 Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). A prisoner suing 22 prison officials under section 1983 for retaliation must show that he was retaliated against for 23 exercising his constitutional rights and that the retaliatory action does not advance legitimate 24 penological goals, such as preserving institutional order and discipline. Bruce v. Ylst, 351 F.3d 25 1283, 1288 (9th Cir. 2003). Plaintiff must establish a nexus between the retaliatory act and the 26 protected activity. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000). 6 1 The plaintiff bears the burden of pleading and proving the absence of legitimate correctional 2 goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 3 Defendant asserts his participation in the events on March 25, 2005 was based 4 solely on the fact that he was ordered to assist other officers in physically returning plaintiff to 5 his cell because plaintiff was refusing to do so voluntarily. Decl. of J. Ginder at ¶ 3-6. Assuming 6 defendant took some sort of adverse action against plaintiff during the transfer of plaintiff from 7 the prison office to plaintiff’s cell, plaintiff fails to point to any evidence suggesting that 8 defendants’s actions were motivated in any way by the fact that plaintiff had either filed prisoner 9 grievances in the past, that plaintiff had threatened to file grievances or some other exercise of 10 plaintiff’s First Amendment rights. Therefore, the court will recommend that defendant be 11 granted summary judgment as to plaintiff’s claim against defendant arising under the First 12 Amendment. 13 IV. Qualified Immunity 14 Defendant asserts he is immune for suit with respect to plaintiff’s Eighth 15 Amendment claim under the “qualified immunity” doctrine.3 Government officials performing 16 discretionary functions generally are shielded from liability for civil damages insofar as their 17 conduct does not violate clearly established statutory or constitutional rights of which a 18 reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In 19 determining whether a governmental officer is immune from suit based on the doctrine of 20 qualified immunity, the court must answer two questions. The first is, do the facts alleged show 21 the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). 22 The second is was the right “clearly established?” Id. “If the law did not put the [defendant] on 23 notice that [his] conduct would be clearly unlawful, summary judgment based on qualified 24 immunity is appropriate.” Id. at 202. 25 3 26 Defendant does not argue he is entitled to immunity under the “qualified immunity” doctrine with respect to plaintiff’s First Amendment claim. 7 1 As indicated above, there are at least genuine issues of material fact with respect 2 to plaintiff’s claim that defendant subjected him to excessive force in violation of the Eighth 3 Amendment. Further, the law with respect to excessive force which is outlined above was 4 clearly established when all of the actions relevant to plaintiff’s claim took place. Therefore, 5 defendant is not immune from plaintiff’s Eighth Amendment claim under the doctrine of 6 “qualified immunity.” 7 In accordance with the above, IT IS HEREBY RECOMMENDED that: 8 1. Defendant Ginder’s motion for summary judgment (#97) be granted with 9 10 respect to plaintiff’s First Amendment claim, and denied without prejudice to renewal at pretrial conference with respect to plaintiff’s Eighth Amendment claim; 11 2. Plaintiff be ordered to file an amended pretrial statement concerning all 12 remaining defendants and claims within thirty days of an order adopting the foregoing findings 13 and recommendations. Defendants should be ordered to file their pretrial statement within 14 twenty-one days of service of plaintiff’s. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 20 shall be served and filed within fourteen days after service of the objections. The parties are 21 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: February 8, 2011 /s/ Gregory G. Hollows 24 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 25 26 kc mcdo2145.57 8
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