Payne v. Senuta et al, No. 4:2009cv04084 - Document 26 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS' 20 MOTION FOR SUMMARY JUDGMENT AND DISMISSING AMENDED CLAIMS. Signed by Judge Claudia Wilken on 8/11/2011. (ndr, COURT STAFF) (Filed on 8/11/2011)
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Payne v. Senuta et al Doc. 26 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 CARLTON PAYNE, 4 5 6 No. C 09-4084 CW (PR) Plaintiff, ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING AMENDED CLAIMS v. CORRECTIONAL OFFICER C. SENUTA, et al., (Docket no. 20) 7 8 Defendants. ________________________________/ 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Plaintiff Carlton Payne, a state prisoner currently incarcerated at Pelican Bay State Prison (PBSP), brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging claims of deliberate indifference to safety, excessive force, retaliation and supervisory liability. These allegations stem from a March 24, 2009 incident involving PBSP Correctional Officers C. Senuta, J. R. Bemrose and R. J. Lesina, in which Plaintiff was released into a recreational yard along with another inmate who subsequently fought with him. Plaintiff seeks monetary damages. On March 22, 2010, Plaintiff filed a request to add PBSP Acting Warden Francisco Jacquez as a Defendant in this action. On May 10, 2010, the Court conducted an initial screening of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a) and found cognizable his Eighth Amendment claims against Defendants Senuta, Bemrose and Lesina. The Court dismissed Plaintiff's retaliation claim against Defendants Senuta, Bemrose and Lesina with leave to amend. The Court granted Plaintiff's motion to amend the complaint to add Defendant Jacquez, who was being sued in his supervisory capacity. However, the Court dismissed the supervisory liability Dockets.Justia.com 1 claim against Defendant Jacquez with leave to amend. 2 directed Plaintiff to file his amended claims and gave him until 3 June 9, 2010 to do so. 4 result in dismissal of his retaliation and supervisory liability 5 claims without prejudice. 6 The Court He was warned the failure to do so would On May 19, 2010, Plaintiff filed a letter relating to his retaliation and supervisory liability claims. 8 labeled as his amendment to the complaint; however, it seems to be 9 an effort by Plaintiff to amend his retaliation and supervisory 10 United States District Court For the Northern District of California 7 liability claims pursuant to the Court's May 10, 2010 Order of 11 Service. 12 complaint, and will address it below. 13 This letter was not Therefore, the Court construes it as his amendment to the On October 13, 2010, Defendants moved for summary judgment on 14 the grounds that there is no issue as to any material fact, that 15 they are entitled to judgment as a matter of law, and that they are 16 entitled to qualified immunity. 17 filed a document entitled, "Declaration of Carlton Payne," which 18 the Court construes as an affidavit in opposition to Defendants' 19 motion for summary judgment, as explained below. 20 2010, Defendants filed their reply. 21 22 On November 22, 2010, Plaintiff On December 7, For the reasons discussed below, the Court GRANTS Defendants' motion for summary judgment. 23 BACKGROUND 24 The following facts are undisputed unless otherwise noted. 25 On March 24, 2009, Plaintiff was housed in PBSP's Security 26 Housing Unit (SHU), specifically Unit C9, Cell 102. 27 at 1, 3.) (Payne Compl. A control booth, which is situated on the second floor, 28 2 1 overlooks each of the six pods that comprise Unit C9.1 2 Decl. ¶ 3.) 3 tier and four on an upper tier. 4 control booth, a correctional officer can see the doors on the 5 outside of those cells, but not inside them. 6 (Bemrose Each pod contains eight cells -– four cells on a lower (Senuta Decl. ¶ 4.) From the (Id.) At the far end of each pod is a concrete recreation yard. 7 (Grigg Decl., Ex. A at 24:3-7; Senuta Decl. ¶ 5.) 8 separating each pod from its adjacent recreation yard is solid, a 9 correctional officer can see directly into the recreation yard from Because the wall United States District Court For the Northern District of California 10 the control booth only when the yard door is open. 11 control booth, correctional officers rely on three overhead 12 television monitors to survey the recreation yard. 13 cycles between two yards every five to six seconds.2 14 ¶ 6.) 15 In the (Id.) Each monitor (Senuta Decl. Control booth operators coordinate the movement of inmates in 16 and out of their pods as well as the movement of staff entering the 17 pods to provide inmates with food, medication, security-related 18 assistance, etc. 19 Specifically, as part of their duties, control booth operators open 20 doors for inmates on a list of those choosing to take turns 21 participating in ninety minutes of recreation yard time. 22 Decl. ¶ 9.) 23 time. 24 time, control booth operators generally start with the first on the 25 list in A-Pod, release that inmate, close his cell door, open the (Id.) (Bemrose Decl. ¶ 26; Senuta Decl. ¶ 8.) (Senuta Only one inmate is allowed in the recreation yard at a When releasing each inmate for his recreation yard 26 27 1 28 2 Unit C9 contains pods A through F. Each television monitor cycles every five to six seconds among pods A and B, and pods C and D, as well as pods E and F. 3 1 recreation yard door, wait for him to enter the yard, and then 2 close the door behind him. 3 perform similar actions for the other yards before cycling back to 4 A-Pod, where, after the first inmate is returned to his cell, the 5 process is repeated for the next inmate on the list. 6 (Id.) Control booth operators then (Id.) A single control booth officer controls all doors in Unit C9 7 using an instrument panel, which regulates access to forty-eight 8 cell doors, six doors leading into the pods, six doors leading into 9 the recreations yards, and twelve shower doors, as well as a door United States District Court For the Northern District of California 10 leading into the unit. 11 The instrument panel also has an override switch. 12 (Bemrose Decl. ¶ 26; Senuta Decl. ¶ 7.) (Id.) On March 24, 2009, Defendant Senuta was working overtime as 13 the Unit C9 control booth operator. 14 Senuta claims that she "worked infrequently in the control booth, 15 and only when working overtime." 16 at a time oversees each unit. 17 booth operators open and close the doors with an instrument panel 18 that includes roughly eighty switches. 19 Decl. ¶ 7.) 20 at Unit C9 by placing pegs denoting each of their locations in 21 instrument panel slots representing each of their cells. 22 (Senuta Decl. ¶ 7.) (Id.) Defendant One control booth operator (Id. ¶ 3.) In Unit C9, the control (Bemrose Decl. ¶ 26; Senuta Control booth operators monitor each inmate's location (Id.) On March 24, 2009, Defendant Bemrose worked as the Unit C9 23 floor officer. 24 included conducting routine cell searches when inmates were in the 25 recreation yards. 26 (Bemrose Decl. ¶ 5.) Defendant Bemrose's duties (Id.) At around 10:20 a.m. on that same day, Defendant Bemrose 27 contacted Defendant Senuta to ask which inmate's cell was empty 28 because he planned to conduct a search of the empty cells in A-Pod. 4 1 (Id.) 2 an inmate into the A-Pod recreation yard and that the inmate in 3 cell C9-102, Plaintiff's cell, was about to exit his cell and enter 4 the yard. 5 she could let him know when Plaintiff's cell was empty. 6 Defendant Bemrose then went to check the unit search log to see if 7 cell C9-102 had recently been searched. 8 with Defendant Bremrose, Defendant Senuta released Plaintiff for 9 his recreational yard time. Defendant Senuta explained that she was preparing to release (Bemrose Decl. ¶ 6.) She told Defendant Bremrose that (Id.) (Id.) As she was speaking (Senuta Decl. ¶ 12.) Because United States District Court For the Northern District of California 10 Defendant Senuta claims to have been distracted by her conversation 11 with Defendant Bemrose, she did not place a peg in the C9-102 slot 12 to note that Plaintiff was in the yard. 13 "incorrectly" placed the peg indicating which inmate was going into 14 the yard into the C9-103 slot on the instrument panel, instead of 15 the C9-102 slot. 16 in C9-103, inmate Baca, into the yard shortly after Plaintiff 17 because she had "forgotten" that she had already released Plaintiff 18 into the yard. (Id.) (Id.) Instead, she Defendant Senuta then released the inmate (Id.) 19 Defendant Bemrose returned from checking the cell search log 20 in time to see inmate Baca quickly walk into the A-Pod recreation 21 yard from cell C9-103. 22 Defendant Bemrose, inmate Baca's quick walking speed seemed "odd" 23 because inmates do not typically move quickly from their cells to 24 the yard. 25 witnessed inmate Baca walking quickly into the yard and Defendant 26 Senuta had previously informed him that Plaintiff was going into 27 yard, Defendant Bemrose suspected that two inmates might be in the 28 yard simultaneously. (Bemrose Decl. ¶ 8.) (Bemrose Decl. ¶ 7.) According to Because Defendant Bemrose (Bemrose Decl. ¶ 8.) 5 Knowing that inmates 1 sometimes pose safety risks to other inmates, Defendant Bemrose 2 immediately attempted to determine whether two inmates were in the 3 A-Pod recreation yard. 4 to a location where he could look up through the grating separating 5 the control booth from the ground floor to see the overhead monitor 6 that alternated between surveying the recreational yards at Pods A 7 and B. 8 Defendant Senuta, asking whether two inmates were in the A-Pod 9 recreation yard. (Id.) (Id. ¶ 9.) Defendant Bemrose quickly moved Simultaneously, Defendant Bemrose called up to (Id. ¶ 10.) Believing there to be only one United States District Court For the Northern District of California 10 inmate in that yard, Defendant Senuta replied in the negative. 11 (Senuta Decl. ¶ 14.) 12 security camera onto the A-Pod recreation yard and saw Plaintiff 13 and inmate Baca fighting. 14 from the monitor as well, Defendant Bemrose told Defendant Senuta 15 to activate the alarm and summon additional correctional officers, 16 which she immediately did.3 17 ¶ 14.) 18 To confirm, Defendant Senuta locked the (Id.) Seeing two inmates in that yard (Bemrose Decl. ¶ 11; Senuta Decl. Within thirty seconds of Defendant Senuta sounding the alarm, 19 six correctional officers, including Defendant Lesina, assembled 20 and immediately proceeded to the A-Pod recreational yard's handcuff 21 port. 22 Bemrose opened the handcuff port and saw Plaintiff and inmate Baca 23 wrestling on the ground. 24 then ordered the inmates to cease fighting and separate. 25 Decl. ¶ 3.) (Bemrose Decl. ¶¶ 12-14; Lesina Decl. ¶¶ 2-3.) (Bemrose Decl. ¶ 14.) Defendant Defendant Lesina (Lesina Both Plaintiff and inmate Baca ignored Defendant 26 27 28 3 Pursuant to CDCR policy, additional correctional officers are summoned to stop fights and to minimize the risk that the inmates' violence will injure those correctional officers trying to intervene. (Bemrose Decl. ¶ 13; Lesina Decl. ¶ 2.) 6 1 Lesina's verbal instructions and continued to fight. 2 Decl. ¶ 14; Lesina Decl. ¶ 3.) 3 continued ordering the inmates to stop fighting at least fifteen to 4 twenty times. 5 complied and they continued exchanging blows about eight to ten 6 feet from the yard door. 7 (Bemrose Other correctional officers (Lesina Decl. ¶ 3.) However, neither inmate (Id.) Standing in front of the handcuff port, Defendant Lesina then 8 used oleoresin capsicum spray (OC spray) to subdue Plaintiff and 9 inmate Baca. (Lesina Decl. ¶ 5.) Defendant Lesina discharged a United States District Court For the Northern District of California 10 single two second burst of OC spray from roughly nine to ten feet 11 away from the inmates. 12 inmates to stop fighting and separate. 13 Baca then complied. 14 (Id.) Defendant Lesina again ordered both (Id.) Plaintiff and inmate (Id.) Officer Lesina then ordered inmate Baca to lie face down on 15 the ground in the yard's far corner and ordered Plaintiff to back 16 up toward the handcuff port in order to be handcuffed. 17 Plaintiff complied and was promptly escorted to a shower and 18 subsequently to the nurse, Lori Bree, in order to minimize his 19 discomfort and to neutralize any lingering effects of the OC spray. 20 (Grigg Decl., Ex. B at 3.) 21 (Id. ¶ 6.) Nurse Bree noted that Plaintiff suffered a variety of minor 22 scrapes and bruises. 23 which took roughly three weeks to heal. 24 58:17-20.) 25 spray when Nurse Bree evaluated him. 26 Nurse Bree gave Plaintiff Tylenol to mitigate any discomfort and 27 antibiotics because he claimed inmate Baca bit him. 28 (Id.) He had a cut on the back of his head (Grigg Decl., Ex. A at Plaintiff's eyes were also red and watery from the OC (Grigg Decl., Ex. B at 3.) (Id.) Thereafter, Plaintiff complained about blurred vision and was 7 1 examined by an ophthalmologist, Dr. Cochrane, at North Coast 2 Ophthalmology on March 27, 2009 and April 9, 2009. 3 Dr. Cochrane noted that Plaintiff provided "very inconsistent 4 answers" during the examination. 5 Plaintiff's subjective responses were inconsistent with objective 6 findings. 7 with Plaintiff's eyes. (Id.) Dr. Cochrane found that Dr. Cochrane concluded that nothing was wrong (Id. at 5.) 8 9 (Id.) (Id. at 4, 5.) DISCUSSION I. Motion for Summary Judgment United States District Court For the Northern District of California 10 A. 11 Summary judgment is properly granted when no genuine and 12 disputed issues of material fact remain and when, viewing the 13 evidence most favorably to the non-moving party, the movant is 14 clearly entitled to prevail as a matter of law. 15 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 16 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 17 1987). 18 Standard of Review Fed. R. Civ. P. The moving party bears the burden of showing that there is no 19 material factual dispute. 20 the opposing party's evidence, if supported by affidavits or other 21 evidentiary material. 22 F.2d at 1289. 23 favor of the party against whom summary judgment is sought. 24 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 25 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 26 1551, 1558 (9th Cir. 1991). 27 opposing affidavit under Rule 56, as long as it is based on 28 personal knowledge and sets forth specific facts admissible in Therefore, the Court must regard as true Celotex, 477 U.S. at 324; Eisenberg, 815 The Court must draw all reasonable inferences in A verified complaint may be used as an 8 1 evidence. 2 Cir. 1995). 3 Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Material facts which would preclude entry of summary judgment 4 are those which, under applicable substantive law, may affect the 5 outcome of the case. 6 are material. 7 (1986). 8 on an issue at trial, the moving party may discharge its burden of 9 showing that no genuine issue of material fact remains by The substantive law will identify which facts Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 Where the moving party does not bear the burden of proof United States District Court For the Northern District of California 10 demonstrating that "there is an absence of evidence to support the 11 nonmoving party's case." 12 then shifts to the opposing party to produce "specific evidence, 13 through affidavits or admissible discovery material, to show that 14 the dispute exists." 15 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). 16 failure of proof concerning an essential element of the non-moving 17 party's case necessarily renders all other facts immaterial. 18 Celotex, 477 U.S. at 323. Celotex, 477 U.S. at 325. The burden Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 A complete 19 B. 20 A district court may only consider admissible evidence in Evidence Considered 21 ruling on a motion for summary judgment. 22 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 23 In support of Defendants' motions for summary judgment, See Fed. R. Civ. P. 24 affidavits have been filed by Attorney Grigg and Defendants Senuta, 25 Bemrose and Lesina. 26 Plaintiff verified his complaint filed on September 2, 2009 by 27 signing it under penalty of perjury. 28 declaration filed on November 22, 2010 by signing it under penalty 9 Plaintiff also verified his 1 of perjury. 2 will treat Plaintiff's original complaint and his declaration as 3 affidavits in opposition to Defendants' motion for summary judgment 4 under Rule 56 of the Federal Rules of Civil Procedure. 5 Schroeder, 55 F.3d at 460 & nn.10-11. Therefore, for the purposes of this Order, the Court See 6 C. 7 Plaintiff maintains that on March 24, 2009, Defendant Senuta Legal Claims 8 acted with deliberate indifference to his physical safety by 9 releasing him into an exercise area along with inmate Baca, who United States District Court For the Northern District of California 10 subsequently assaulted him. 11 Senuta and Bemrose acted with deliberate indifference by failing to 12 intervene while he was being attacked. 13 claims that Defendant Lesina used excessive force against him by 14 responding to the scene and spraying him in the eyes and face with 15 OC spray, which caused him pain and temporary blindness in both 16 eyes. 17 18 1. Plaintiff claims that Defendants Furthermore, Plaintiff Deliberate Indifference Claim The Eighth Amendment requires prison officials to take 19 reasonable measures to guarantee the safety of prisoners. 20 Farmer v. Brennan, 511 U.S. 825, 832 (1994). 21 officials have an affirmative duty to protect inmates from violence 22 at the hands of other inmates. 23 prison official to protect inmates from attacks by other inmates or 24 from dangerous conditions at the prison violates the Eighth 25 Amendment only when two requirements are met: (1) the objective 26 component -- the deprivation alleged must be sufficiently serious, 27 see Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 28 298 (1991); and (2) the subjective component -- the prison official In particular, prison See id. at 833. 10 See The failure of a 1 must possess a sufficiently culpable state of mind. 2 (citing Wilson, 501 U.S. at 297). 3 See id. In determining whether a deprivation of a basic necessity is 4 sufficiently serious to satisfy the objective component of an 5 Eighth Amendment claim, a court must consider the circumstances, 6 nature, and duration of the deprivation. 7 Wilson, 501 U.S. at 298). 8 component, the requisite state of mind depends on the nature of the 9 claim. Id. at 834 (citing With respect to the subjective In prison-conditions cases, the necessary state of mind is United States District Court For the Northern District of California 10 one of "deliberate indifference." 11 F.3d 1082, 1087 (9th Cir. 1994) (outdoor exercise); Farmer, 511 12 U.S. at 834 (inmate safety); Estelle v. Gamble, 429 U.S. 97, 104 13 (1976) (inmate health); Wilson, 501 U.S. at 302-03 (general 14 conditions of confinement). See, e.g., Allen v. Sakai, 48 15 A prison official cannot be held liable under the Eighth 16 Amendment for failing to guarantee the safety of a prisoner unless 17 the standard for criminal recklessness is met, i.e., the official 18 knows of and disregards an excessive risk to inmate health or 19 safety. 20 aware of facts from which the inference could be drawn that a 21 substantial risk of serious harm exists, and he must also draw the 22 inference. 23 See Farmer, 511 U.S. at 837. The official must both be See id. Deliberate indifference describes a state of mind more 24 blameworthy than negligence. 25 Estelle, 429 U.S. at 104). 26 will constitute deliberate indifference. 27 835-36 & n.4; see also Estelle, 429 U.S. at 106 (establishing that 28 deliberate indifference requires more than negligence). See Farmer, 511 U.S. at 835 (citing Neither negligence nor gross negligence 11 See Farmer, 511 U.S. at 1 Here, to be liable for failure to prevent serious harm to an 2 inmate, Defendants Senuta, Bemrose and Lesina must each 3 individually know of and consciously disregard an excessive risk to 4 Plaintiff's safety. See Farmer, 511 U.S. at 837. 5 The Court finds that Plaintiff has failed to raise a triable 6 issue as to whether Defendants acted with deliberate indifference 7 in regard to guaranteeing his personal safety. 8 summary judgment motion, Plaintiff must raise a triable issue of 9 fact as to both the objective and subjective prongs of the To survive the United States District Court For the Northern District of California 10 deliberate indifference standard. 11 light most favorable to Plaintiff, there is no triable issue 12 because Defendants were not subjectively deliberately indifferent 13 to a risk to Plaintiff's safety. 14 Viewing the evidence in the The facts as alleged amount at most to negligence based on 15 Defendants Senuta's and Bemrose's mistakenly placing Plaintiff and 16 another inmate into the same yard and failing to intervene quickly 17 enough to guarantee Plaintiff's safety. 18 negligence are not enough to amount to an Eighth Amendment 19 violation. 20 not shown by merely stating that a defendant should have known of a 21 risk, but requires an actual perception of a risk that does not 22 exist merely because a reasonable person should have perceived a 23 risk. 24 Farmer, 511 U.S. at 835. Negligence and even gross Deliberate indifference is Id. at 836 & n.4. Plaintiff's deliberate indifference claim with respect to 25 Defendant Senuta is untenable as a matter of law because she was 26 unaware of any risk of harm associated with inmate Baca's release 27 for recreational yard time into what she believed to be an empty 28 yard. Defendant Senuta did not actually know of nor could she 12 1 infer that releasing inmate Baca for yard time would expose 2 Plaintiff to a substantial risk of harm. 3 Senuta and Bemrose responded immediately upon recognizing that the 4 inmates were involved in an altercation. 5 Furthermore, Defendants Plaintiff has not presented any evidence that either Defendant 6 Senuta or Bemrose acted with criminal recklessness. 7 Court finds that Plaintiff has failed to raise a triable issue of 8 fact as to whether Defendants Senuta and Bemrose acted with 9 deliberate indifference under the subjective prong of Farmer. Therefore, the 511 United States District Court For the Northern District of California 10 U.S. at 834. 11 judgment as a matter of law on Plaintiff's deliberate indifference 12 claim. 13 14 2. Defendants Senuta and Bemrose are entitled to a Excessive Force Claim In order to state a claim for the use of excessive force in 15 violation of the Eighth Amendment, Plaintiff must allege facts 16 that, if proven, would establish that prison officials applied 17 force "maliciously and sadistically to cause harm," rather than in 18 a good-faith effort to maintain or restore discipline. 19 McMillian, 503 U.S. 1, 6-7 (1992). 20 by an inmate is one of the factors to be considered in determining 21 whether the use of force is wanton and unnecessary. 22 malevolent touch by a prison guard gives rise to a federal cause of 23 action; the Eighth Amendment's prohibition of cruel and unusual 24 punishment necessarily excludes from constitutional recognition de 25 minimis uses of physical force. 26 only in proportion to the need for it in each situation. 27 Procunier, 600 F.2d 189, 195 (9th Cir. 1979). 28 Hudson v. The extent of injury suffered Id. at 9-10. Id. Not every Guards may use force Spain v. In determining whether the use of force was for the purpose of 13 1 maintaining or restoring discipline or, rather, for the malicious 2 and sadistic purpose of causing harm, a court may evaluate the need 3 for the application of force, the relationship between that need 4 and the amount of force used, the extent of any injury inflicted, 5 the threat reasonably perceived by the responsible officials, and 6 any efforts made to temper the severity of a forceful response. 7 Hudson, 503 U.S. at 7. 8 administrators wide-ranging deference in the adoption and execution 9 of policies and practices to further institutional order and However, courts must accord prison United States District Court For the Northern District of California 10 security. 11 Gomez, 267 F.3d 895, 917 (9th Cir. 2001). 12 Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jeffers v. The Court finds that Plaintiff has failed to raise a triable 13 issue as to whether Defendant Lesina used excessive force by 14 spraying him in the eyes and face with OC spray. 15 summary judgment motion, Plaintiff must raise a triable issue of 16 fact establishing that Defendant Lesina applied force "maliciously 17 and sadistically to cause harm," rather than in a good-faith effort 18 to maintain or restore discipline. 19 To overcome the To promote staff safety, CDCR policy dictates that 20 correctional officers should not rush into physical altercations 21 between inmates, and instead, must order inmates to cease fighting. 22 (Bemrose Decl. ¶ 15.) 23 orders, correctional officers are directed to use OC spray as 24 reasonably necessary to subdue the inmates without endangering 25 themselves or other staff.4 In situations where inmates disregard those (Lesina Decl. ¶ 4.) The spray makes 26 27 28 4 Inmates are on notice and understand that if they do not follow orders during violent altercations between inmates, CDCR officers may use OC spray to stop them. (Lesina Decl. ¶ 4.) 14 1 it difficult for inmates to continue fighting because it 2 temporarily makes it difficult to see and causes them to cough. 3 (Id.) 4 where the spray will be most effective, which allows correctional 5 officers to regain control of non-compliant inmates more rapidly. 6 OC spray is disbursed from a canister in a cone fashion, hitting a 7 surface area of approximately three feet wide at a distance of nine 8 to ten feet. 9 CDCR staff are trained to aim for the face because that is (Id. ¶¶ 5-6.) Based on Plaintiff's refusal to comply with the direct orders United States District Court For the Northern District of California 10 of correctional officers and his disorderly behavior, Defendant 11 Lesina states that he determined that spraying OC at Plaintiff was 12 necessary for the purpose of maintaining order and discipline. 13 (Lesina Decl. ¶ 5.) 14 which required him to use OC spray -- the lowest level of force -- 15 to keep Plaintiff from hurting himself or others. 16 Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (where, "after 17 adequate warning," a prisoner acts in such a way as to present "a 18 reasonable possibility that slight force will be required," use of 19 chemical spray "may be a legitimate means for preventing small 20 disturbances from becoming dangerous"). 21 that he acted to preserve order in response to a reasonably 22 perceived threat that was created by Plaintiff and inmate Baca, and 23 Plaintiff offers no contrary evidence. 24 could reasonably conclude that some force by Defendant Lesina was 25 necessary to maintain order, and that his use of OC spray was 26 acceptable under the circumstances. 27 dangerous and painful substance, tear gas, did not violate the 28 Eighth Amendment when used to contain disturbances that threatened Defendant Lesina complied with CDCR policy, 15 See Spain v. Defendant Lesina states Therefore, a finder of fact See id. (a demonstrably 1 an equal or greater harm); see also Michenfelder v. Sumner, 860 2 F.2d 328, 334-36 (9th. Cir. 1988) (noting that while tear gas may 3 not be used to punish a prisoner, it can be reasonably used to 4 quell disorders and to compel obedience). 5 Furthermore, Plaintiff's injuries did not necessarily indicate that the force used by Defendant Lesina was excessive. 7 claims he suffered from obstructed vision and physical pain. 8 the extent of injury suffered by an inmate is one of the factors to 9 be considered in determining whether the use of force is wanton and 10 United States District Court For the Northern District of California 6 unnecessary, the absence of serious injury does not end the Eighth 11 Amendment inquiry. 12 that every malevolent touch by a prison guard gives rise to a 13 federal cause of action; the Eighth Amendment's prohibition of 14 cruel and unusual punishment necessarily excludes from 15 constitutional recognition de minimis uses of physical force. 16 id. at 9-10 (blows directed at inmate which caused bruises, 17 swelling, loosened teeth and cracked dental plate were not de 18 minimis). 19 Plaintiff's injuries indicated that Defendant Lesina's use of force 20 was de minimis as OC spray's injurious effects are significantly 21 less than those that can be caused by other forms of control, i.e., 22 the use of batons and guns. 23 produced sufficient evidence that his injuries indicated Defendant 24 Lesina's use of force was not de minimis, this one factor is 25 insufficient to raise a dispute of material fact that the force 26 used was not necessary under the circumstances. 27 28 See Hudson, 503 U.S. at 7. Plaintiff While That is not to say See A finder of fact could reasonably conclude that However, even if Plaintiff had In sum, the undisputed evidence before the Court shows that Plaintiff and inmate Baca had engaged in a fight. 16 Plaintiff did 1 not follow Defendant Lesina's and other officers' direct orders to 2 stop fighting. 3 Plaintiff, there is no triable issue because Defendant Lesina 4 stated that he acted in good faith by using OC spray to stop the 5 fight, Plaintiff has no evidence otherwise, and no reasonable fact 6 finder would find that Defendant Lesina applied force maliciously 7 and sadistically to cause harm. 8 to establish a triable issue of fact that he was subjected to 9 excessive force by the Defendant Lesina. Viewing the evidence in the light most favorable to Accordingly, Plaintiff has failed Defendant Lesina is United States District Court For the Northern District of California 10 therefore entitled to judgment as a matter of law on the Eighth 11 Amendment excessive force claim. 12 D. 13 Defendants claim that summary judgment is also proper in this Qualified Immunity 14 case because they are entitled to qualified immunity from liability 15 for civil damages. 16 "government officials . . . from liability for civil damages 17 insofar as their conduct does not violate clearly established 18 statutory or constitutional rights of which a reasonable person 19 would have known." 20 The threshold question in qualified immunity analysis is: "Taken in 21 the light most favorable to the party asserting the injury, do the 22 facts alleged show the officer's conduct violated a constitutional 23 right?" 24 considering a claim of qualified immunity must determine whether 25 the plaintiff has alleged the deprivation of an actual 26 constitutional right and whether such right was "clearly 27 established." 28 818 (2009) (overruling the sequence of the two-part test that The defense of qualified immunity protects Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Saucier v. Katz, 533 U.S. 194, 201 (2001). A court Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 17 1 required determination of a deprivation first and then whether such 2 right was clearly established, as had been required by Saucier, and 3 holding that a court may exercise its discretion in deciding which 4 prong to address first, in light of the particular circumstances of 5 each case). 6 whether a right is clearly established is whether it would be clear 7 to a reasonable officer that her or his conduct was unlawful in the 8 situation she or he confronted. 9 The relevant, dispositive inquiry in determining Saucier, 533 U.S. at 201-202. Here, the Court has found no evidence that Defendants' actions United States District Court For the Northern District of California 10 rose to the level of a constitutional violation. 11 that Plaintiff was deprived of a constitutional right, the Court 12 next considers whether Defendants' conduct was clearly unlawful. 13 Plaintiff alleges that Defendants Senuta and Bemrose were 14 deliberately indifferent to his safety by releasing inmate Baca in 15 the yard and failing to respond adequately upon seeing the inmates 16 fighting. However, assuming 17 The Court finds that Defendants are entitled to qualified 18 immunity because they have produced sufficient evidence that a 19 reasonable officer in their position would have believed that their 20 actions were reasonable based on the circumstances they confronted. 21 Inmate Baca's release into A-Pod yard was the result of a mistake 22 in placing the indicator peg in the incorrect slot. 23 Senuta and Bemrose discovered this mistake only after noticing 24 Plaintiff and inmate Baca wrestling on the surveillance monitor. 25 Defendants Senuta and Bemrose immediately sounded the alarm and 26 attempted to separate the inmates. 27 Defendant Lesina ordered the inmates to cease fighting and only 28 resorted to OC spray after the inmates failed to comply. 18 Defendants Following CDCR policy, 1 Upon recognizing that two inmates were inadvertently released 2 into the same yard and were fighting, it would not have been clear 3 to a reasonable officer that the immediate actions taken by 4 Defendants Senuta and Bemrose were unlawful. 5 reasonable officer in Defendant Lesina's position would have 6 thought it lawful to use OC spray on Plaintiff after he disobeyed 7 orders to cease fighting, especially in light of CDCR policy 8 dictating that particular protocol. 9 circumstances on March 24, 2009 did not put Defendants individually Additionally, a Because the law and United States District Court For the Northern District of California 10 on notice that their conduct would be clearly unlawful, summary 11 judgment based on qualified immunity is appropriate. 12 533 U.S. at 202. 13 judgment is GRANTED. 14 II. See Saucier, Accordingly, Defendants' motion for summary Review of Amendment to Complaint 15 A. 16 In the May 10, 2010 Order of Service, the Court found that Retaliation Claim 17 Plaintiff failed to state a cognizable retaliation claim stemming 18 from inmate Baca's release into the same yard, which resulted in 19 Plaintiff's assault. 20 In his amendment to the complaint, Plaintiff alleges that 21 Defendants Senuta, Bemrose and Lesina knew about complaints he had 22 filed against other PBSP officers, and that this knowledge was a 23 substantial and motivating factor for Defendants' actions on March 24 24, 2009. 25 him Defendant Senuta previously had intentionally released two 26 inmates for yard time simultaneously in a different housing unit. 27 (Grigg Decl., Ex. A at 73:3-25, 74:1-10.) 28 Plaintiff also asserts that unidentified inmates told "Within the prison context, a viable claim of First Amendment 19 1 retaliation entails five basic elements: 2 state actor took some adverse action against an inmate (2) because 3 of (3) that prisoner's protected conduct, and that such action 4 (4) chilled the inmate's exercise of his First Amendment rights, 5 and (5) the action did not reasonably advance a legitimate 6 correctional goal." 7 Cir. 2005) (footnote omitted). 8 must show that the defendants took adverse action against him or 9 her that "would chill or silence a person of ordinary firmness from (1) An assertion that a Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th To prove retaliation, a plaintiff United States District Court For the Northern District of California 10 future First Amendment activities." 11 1228 (9th Cir. 2000) (citing Mendocino Envtl. Ctr. v. Mendocino 12 County, 192 F.3d 1283, 1300 (9th Cir. 1999)). 13 White v. Lee, 227 F.3d 1214, Retaliation is not established simply by showing adverse 14 activity by a defendant after protected speech; rather, the 15 plaintiff must show a nexus between the two. See Huskey v. City of 16 San Jose, 204 F.3d 893, 899 (9th Cir. 2000). However, retaliatory 17 motive may be shown by the timing of the alleged retaliatory act, 18 as well as by direct evidence. 19 89 (9th Cir. 2003). 20 Bruce v. Ylst, 351 F.3d 1283, 1288- Here, Plaintiff's amended retaliation claim still does not 21 allege any nexus between his grievances against other officers and 22 the alleged purposeful release of inmate Baca into A-Pod. 23 Plaintiff alleges that Defendants conspired intentionally to 24 release inmate Baca into the A-Pod recreation yard to harm him. 25 Plaintiff bases his claim on his own deposition testimony and 26 hearsay from other inmates. 27 conclusory because Plaintiff fails to offer any factual allegations 28 suggesting that Defendants knew the other officers or were aware of However, this conspiracy theory is 20 1 2 the grievances that were filed against them. Accordingly, Plaintiff fails to state a claim of retaliation 3 because he has failed to allege sufficient facts to support his 4 legal theory. 5 cognizable First Amendment retaliation claim against Defendants; 6 therefore, this claim is DISMISSED without further leave to amend. The Court finds that Plaintiff has failed to state a 7 B. 8 In his amended supervisory liability claim, Plaintiff alleges Supervisory Liability Claim Defendant Jacquez imposed a dangerous prison condition on him by 10 United States District Court For the Northern District of California 9 permitting Defendant Senuta to work as a control booth operator. 11 Plaintiff alleges further that Defendant Jacquez disregarded 12 prisoner safety because he knew that Defendant Senuta had a history 13 of misconduct in the same position. 14 The Ninth Circuit has stated: 15 [S]ection 1983 suits do not impose liability on supervising officers under a respondeat superior theory of liability. Instead, supervising officers can be held liable under section 1983 "only if they play an affirmative part in the alleged deprivation of constitutional rights." [citation omitted]. The supervising officer has to "set in motion a series of acts by others . . . which he knew or reasonably should have known, would cause others to inflict the constitutional injury." [citation omitted]. 16 17 18 19 20 Graves v. City of Coeur D'Alene, 339 F.3d 828, 848 (9th Cir. 2003). 21 Additionally, a supervisor may be liable under § 1983 if a 22 plaintiff can show that "'in light of the duties assigned to 23 specific officers or employees, the need for more or different 24 training is obvious, and the inadequacy so likely to result in 25 violations of constitutional rights, that the policy-makers . . . 26 can reasonably be said to have been deliberately indifferent to the 27 need.'" Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002); see 28 also Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 21 1 1991) (en banc) ("Supervisory liability exists even without overt 2 personal participation in the offensive act if supervisory 3 officials implement a policy so deficient that the policy itself is 4 a repudiation of constitutional rights and is the moving force of a 5 constitutional violation"). 6 Here, nothing in Plaintiff's pleadings sufficiently indicates 7 Defendant Senuta's release of inmate Baca was anything but her own 8 isolated mistake resulting from a failure to place the indicator 9 peg into the correct control panel slot. Although Plaintiff United States District Court For the Northern District of California 10 alleges that other inmates told him Defendant Senuta previously 11 intentionally released two inmates into the same yard, the 12 information alleged is unsubstantiated hearsay. 13 that Defendant Jacquez disregarded prisoner safety by permitting 14 Defendant Senuta to work as a control booth operator is conclusory 15 because Plaintiff fails to offer any factual allegations suggesting 16 that Defendant Jacquez knew Defendant Senuta had a history of 17 misconduct, or was aware that Defendant Senuta had previously 18 intentionally released two inmates into the same yard. 19 Plaintiff's theory The Court finds that Plaintiff fails to allege sufficient 20 facts to support his supervisory liability claim against Defendant 21 Jacquez. 22 mistaken action was the result of a deficient prison policy, that 23 Defendant Jacquez directed or set events into motion that resulted 24 in Plaintiff's alleged injury, or that any kind of training could 25 have prevented Defendant Senuta's mistake. 26 alleged sufficient facts showing that Defendant Jacquez could be 27 liable in his supervisory capacity, because Defendants Senuta, 28 Bemrose and Lesina were found not liable for any claims, there Nowhere does Plaintiff allege that Defendant Senuta's 22 Even if Plaintiff had 1 2 would be no supervisory liability. Because Plaintiff has not plead any facts which could support 3 a supervisory liability claim against Defendant Jacquez under 4 § 1983, Plaintiff's claim against Defendant Jacquez is DISMISSED 5 without further leave to amend. 6 CONCLUSION 7 In light of the foregoing, the Court orders as follows: 8 1. 9 Defendants' motion for summary judgment (docket no. 20) is GRANTED. Plaintiff's federal claims stemming from the United States District Court For the Northern District of California 10 allegations in his complaints have all been resolved; however, the 11 Court's ruling does not foreclose Plaintiff from proceeding with 12 any related negligence or other state law claims in state court. 13 14 15 2. Plaintiff's retaliation and supervisory liability claims are DISMISSED without further leave to amend. 3. The Clerk of the Court shall enter judgment in favor of 16 Defendants Senuta, Bemrose, Lesina and Jacquez. 17 also terminate all pending motions and close the file. 18 4. 19 The Clerk shall IT IS SO ORDERED. 20 This Order terminates Docket no. 20. DATED: 8/11/2011 CLAUDIA WILKEN United States District Judge 21 22 23 24 25 26 27 28 23 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 CARLTON PAYNE, Case Number: CV09-04084 CW 4 5 6 7 Plaintiff, CERTIFICATE OF SERVICE v. C SENUTA et al, Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 11, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Carlton Payne J-88526 Pelican Bay State Prison P.O. Box 7500 C12-222 Crescent City, CA 95532 18 Dated: August 11, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 24
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