-JFM (PC) Dicey v. Harrison, W. R., et al., No. 2:2008cv02608 - Document 79 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 12/8/2011 RECOMMENDING that defendants' 63 motion for summary judgment be denied as to plaintiff's Eighth Amendment excessive force claim against defendant Harrison and granted as to plaintiff's Eighth Amendment claim of deliberate indifference against defendants Pfadt and Harrison; this action proceed to trial on plaintiff's Eighth Amendment excessive force claim against defendant Harrison; and this matter be referred back to the undersigned for further pretrial proceedings. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)
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-JFM (PC) Dicey v. Harrison, W. R., et al. Doc. 79 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BERLAN LYNELL DICEY, 11 12 13 14 15 16 Plaintiff, No. 2:08-cv-2608-JAM-JFM (PC) vs. W. R. HARRISON, et al., Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. This action is proceeding on plaintiff’s amended complaint, filed April 9, 18 2009. Plaintiff claims that his rights under the Eighth Amendment were violated by defendant 19 Harrison’s use of excessive force in pepper spraying plaintiff, and by the deliberate indifference 20 of both defendants Harrison and Pfadt to plaintiff’s medical need for adequate and timely 21 decontamination after being pepper sprayed. This matter is before the court on defendants’ 22 motion for summary judgment pursuant to Fed. R. Civ. P. 56. 23 24 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists “no 25 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 26 matter of law.” Fed. R. Civ. P. 56(c). 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 May 28, 2009, 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 2 ANALYSIS I. Facts 3 It is undisputed that at all times relevant to this action plaintiff was an inmate 4 confined at High Desert State Prison (High Desert), and that defendants Harrison and Pfadt were 5 employees of the California Department of Corrections and Rehabilitation (CDCR) working at 6 High Desert. On March 29, 2007, an inmate named Holcomb (Holcomb) approached plaintiff 7 near the pill line window at High Desert’s Facility B medical clinic. Most of the other material facts relevant to plaintiff’s claims are in dispute.1 8 9 Defendants present evidence which suggests the following version of events. Holcomb and 10 plaintiff exchanged words, after which Holcomb swung at plaintiff’s face with a closed fist. Ex. 11 A to Declaration of Dmitri Hanlon in Support of Harrison and Pfadt’s Motion for Summary 12 Judgment, filed March 11, 2011 (Hanlon Declaration). Thereafter Holcomb and plaintiff began 13 to punch each other. Id. Two correctional officers, neither of whom are parties in this action, 14 ordered both inmates to stop and get down but neither complied with the order. Another officer 15 used the public address system to order all inmates on the yard down; all complied except 16 Holcomb and plaintiff. Instead, Holcomb grabbed plaintiff around the torso and forced him to 17 the ground. Declaration of W. Harrison in Support of His and Pfadt’s Motion for Summary 18 Judgment, filed March 11, 2011 (Harrison Declaration), at ¶ 2. Holcomb landed on top of 19 plaintiff and began punching with both fists toward plaintiff’s head. Id. at ¶ 3. Both Holcomb 20 and plaintiff ignored orders to stop fighting, at which point the two non-party correctional 21 officers sprayed them both with pepper spray while they continued to fight. Id. Defendant 22 Harrison also pepper sprayed both inmates in the face area in an effort to stop the fighting. Id. 23 The fighting continued, stopping only after three correctional officers, including the two 24 defendants in this action, struck Holcomb with batons. Id. at ¶¶ 4-5. After Holcomb finally 25 26 1 All parties have presented admissible evidence in support of their respective positions. 4 1 complied with defendant Pfadt’s orders to lay down, both inmates laid down on their stomachs, 2 were placed in handcuffs, and escorted to the program office. Id. at ¶ 5. Plaintiff was escorted 3 by non-party correctional officers Mason and Williams. Exs. D and E to Hanlon Declaration. 4 Inmate Holcomb arrived at the program office first and was decontaminated from 5 the pepper spray with cold water. See Ex. E to Hanlon Declaration. Plaintiff arrived at the office 6 while Holcomb was still being decontaminated and was therefore placed in a holding cell to wait 7 to be decontaminated. Id. Plaintiff was allowed to decontaminate himself once Holcomb 8 finished. See id. Plaintiff was examined by medical staff twenty minutes after the fight on the 9 yard. Exs. A-F to Hanlon Declaration. Medical notes reflect an abrasion on plaintiff’s right hand 10 and exposure to pepper spray; the notes also indicate that plaintiff had been decontaminated. Ex. 11 F. to Hanlon Declaration. Plaintiff was returned to custody at 6:46 p.m. Id. 12 Plaintiff disputes key parts of defendants’ description of events. In particular, 13 plaintiff presents evidence which suggests a different version of events, as follows. Plaintiff was 14 the victim of an assault by Holcomb. See Plaintiff’s Opposition to Defendants’ Motion for 15 Summary Judgment, filed July 27, 2011 (Plaintiff’s Opposition), at 8. He never struck Holcomb 16 before Holcomb knocked him to the ground. See id. Plaintiff was found not guilty of the rules 17 violation of mutual combat in disciplinary proceedings that arose from this incident. Ex. A to 18 Plaintiff’s Opposition, at 4. The hearing officer found by a preponderance of evidence that the 19 rules violation report “describes [plaintiff] as a victim in this incident” and that “[t]here DOES 20 NOT exist enough evidence to find [plaintiff] GUILTY of the specific charge of mutual combat.” 21 Id. As a result, the rules violation charge against plaintiff was dismissed. Id. After Holcomb 22 knocked plaintiff to the ground, Holcomb positioned himself on top of plaintiff’s chest “and 23 punched the plaintiff to unconsciousness.” Id. Defendant Harrison pepper sprayed plaintiff in 24 the face after officers had physically removed inmate Holcomb from plaintiff’s upper torso and 25 after plaintiff had complied with an order to lie in a prone position on his stomach. See 26 Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment, filed July 27, 2011, at 3-4; 5 1 see also Amended Complaint, filed April 9, 2009, at 5.2 Plaintiff “complied immediately” with 2 the order to “prone out”. Id. Thereafter, defendant Harrison stood over plaintiff, stated “Oh this 3 is Dicey” and then sprayed plaintiff in the face with pepper spray. Plaintiff’s Opposition at 4; 4 See also Ex. C to Plaintiff’s Opposition, Declaration by Thaddeus Dawson. Plaintiff yelled as 5 loudly as he could to defendant Harrison to stop because plaintiff had asthma and could not 6 breathe. Amended Complaint at 5. Defendant Harrison told plaintiff to shut up. Id. Plaintiff 7 became nauseated, and defendant Harrison told plaintiff that if he spit again, defendant Harrison 8 would spray him again. Id. Plaintiff explained that if he spit or threw up it would be an accident 9 because he couldn’t breathe, and defendant Harrison responded that if plaintiff spit again it 10 would be an accident that defendant Harrison sprayed him. Id. 11 Plaintiff avers that he was escorted to the medical clinic and that defendant 12 Harrison continued to taunt him. Plaintiff’s Opposition at 5. Plaintiff avers that he asked both 13 defendant Harrison and defendant Pfadt to be decontaminated. Amended Complaint at 5-6. 14 Defendant Harrison told plaintiff to stop complaining. Id. at 6. It is undisputed that plaintiff was 15 in a holding cell for about twenty minutes before he was decontaminated; plaintiff contends the 16 decontamination process was inadequate. Id. 17 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 18 Defendants Harrison and Pfadt seek summary judgment on the grounds that (1) 19 there is no evidence that either of them subjected plaintiff to excessive force3; (2) there is no 20 ///// 21 2 22 23 24 25 26 Both plaintiff’s amended complaint and his opposition to the motion for summary judgment are signed under penalty of perjury and therefore can be treated as affidavits to the extent that the statements contained therein are otherwise admissible and based on plaintiff’s personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). 3 The court has already determined that plaintiff has not raised an excessive force claim against defendant Pfadt. See Findings and Recommendations, filed May 19, 2010, at 24; Order filed June 18, 2010. Accordingly, the court will not reach the arguments raised by defendants in support of their contention that defendant Pfadt is entitled to summary judgment on a claim of excessive force. 6 1 evidence that either of them were deliberately indifference to plaintiff’s medical needs; and (3) 2 they are entitled to qualified immunity on each of plaintiff’s claims. 3 I. Excessive Force 4 “When prison officials use excessive force against prisoners, they violate the 5 inmates’ Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. 6 Gomez, 298 F.3d 898, 903 (9th Cir.2002). “Force does not amount to a constitutional violation 7 in this respect if it is applied in a good faith effort to restore discipline and order and not 8 ‘maliciously and sadistically for the very purpose of causing harm.’ ” Id. (quoting Whitley v. 9 Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). 10 Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 475 U.S., at 321, 106 S.Ct., at 1085. In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.” Ibid. 11 12 13 14 15 16 17 Hudson v. McMillian, 503 U.S. 1, 7 (1992). The United States Supreme Court has recently 18 reiterated that the Eighth Amendment may be violated by use of excessive force against a prison 19 inmate “‘[even] when the inmate does not suffer serious injury.’” Wilkins v. Gaddy, 20 130 S.Ct. 1175, 1176 (2010) (quoting Hudson, 503 U.S. at 4). While the extent of an inmate’s 21 injury is relevant to the Eighth Amendment inquiry, “[i]njury and force . . . are only imperfectly 22 correlated, and it is the latter that ultimately counts.” Wilkins at 1178. 23 U.S. , Defendants contend that all of the Hudson factors demonstrate that defendant 24 Harrison’s use of force was not excessive and was “entirely justified” under the circumstances. 25 Defendants Harrison and Pfadt’s Memorandum of Points and Authorities in Support of Their 26 ///// 7 1 Motion for Summary Judgment, filed March 11, 2011, at 8. However, disputed issues of 2 material fact preclude that determination on this motion for summary judgment. 3 As noted above, plaintiff has presented evidence that plaintiff was the victim of an 4 assault by Holcomb, rather than a mutual combatant. Plaintiff has also presented evidence that 5 defendant Harrison sprayed him in the face with pepper spray after the altercation was over and 6 plaintiff was lying prone on the ground. Plaintiff avers that defendant Harrison recognized 7 plaintiff and identified him by name before he sprayed plaintiff in the head and face with pepper 8 spray. Plaintiff has also presented evidence that he suffered injury as a result of being pepper 9 sprayed. Specifically, he presents evidence that he suffers from asthma and became nauseated, 10 couldn’t see, and his skin burned as a result of the pepper spray. 11 The foregoing evidence is sufficient to raise a triable issue of material fact as to 12 whether defendant Harrison’s use of pepper spray against plaintiff violated the Eighth 13 Amendment. Defendant Harrison is not entitled to summary judgment on the merits of this 14 claim. 15 Defendant Harrison also contends that he is entitled to qualified immunity from 16 liability. “The doctrine of qualified immunity protects government officials ‘from liability for 17 civil damages insofar as their conduct does not violate clearly established statutory or 18 constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 19 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Resolving 20 the defense of qualified immunity involves a two-prong analysis: courts look to whether the 21 facts “show the officer’s conduct violated a constitutional right,” and “whether the right was 22 clearly established” at the time of the alleged unlawful action. See Saucier v. Katz, 533 U.S. 194, 23 201 (2001), overruled in part by Pearson.4 “‘The relevant, dispositive inquiry in determining 24 4 25 26 In Pearson, the United States Supreme Court held that courts may exercise “sound discretion sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson at 236. 8 1 whether a right is clearly established is whether it would be clear to a reasonable officer that his 2 conduct was unlawful in the situation he confronted.’ Saucier, 533 U.S. at 202, 121 S.Ct. 2151. 3 The key inquiry is whether a reasonable person could have believed his actions lawful at the time 4 they were undertaken. Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 5 523 (1987).” Bull v. City and County of San Francisco, 595 F.3d 964, 1002 (9th Cir. 2010). 6 The same disputed issues of fact that preclude summary judgment for defendant 7 Harrison on the merits of plaintiff’s Eighth Amendment claim preclude summary judgment on 8 this claim on the ground of qualified immunity. If plaintiff’s version of events is true, no 9 reasonable correctional officer could have believed it was lawful to use pepper spray under the 10 circumstances described by plaintiff. 11 For all of the foregoing reasons, defendants’ motion for summary judgment 12 should be denied as to plaintiff’s Eighth Amendment claim of excessive force against defendant 13 Harrison. 14 II. Deliberate Indifference to Medical Needs 15 Plaintiff also claims that defendants Harrison and Pfadt acted with deliberate 16 indifference to his serious medical need for prompt and adequate decontamination from the 17 pepper spray. 18 In order to prevail on his Eighth Amendment claim plaintiff must prove that he had 19 a “serious medical need” and that defendants acted with “deliberate indifference” to that need. 20 Estelle v. Gamble, 429 U.S. 97, 105 (1976). A medical need is serious if “the failure to treat a 21 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 22 infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (quoting Estelle, 23 429 U.S. at 104). Deliberate indifference is proved by evidence that a prison official “knows of 24 and disregards an excessive risk to inmate health or safety; the official must both be aware of the 25 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 26 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere 9 1 negligence is insufficient for Eighth Amendment liability. Frost v. Agnos, 152 F.3d 1124, 1128 2 (9th Cir. 1998). In addition, “mere delay”, without a showing of harm caused by the delay, “is 3 insufficient to state a claim of deliberate indifference.” Shapley v. Nevada Board. of State Prison 4 Commissioners, 766 F.2d 404, 407 (9th Cir. 1985). 5 Plaintiff claims that both defendant Pfadt and Harrison ignored his persistent 6 requests for decontamination from the pepper spray in spite of the fact that he told them he 7 suffered from asthma, that he couldn’t see, and that his skin was burning. The undisputed 8 evidence shows that plaintiff was decontaminated not more than twenty-five minutes after he was 9 sprayed with the pepper spray. The undisputed evidence also shows that any delay in 10 decontaminating plaintiff was caused by the fact that plaintiff arrived at the program office while 11 Holcomb was being decontaminated and prison procedures required only one inmate at a time to 12 be at the sink. Plaintiff has not presented any evidence that the twenty-five minute gap between 13 exposure to pepper spray and decontamination was itself harmful, as distinct from the harm 14 caused by the exposure to the pepper spray. For that reason, defendants Harrison and Pfadt are 15 entitled to summary judgment on this claim. 16 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 17 1. Defendants’ March 11, 2011 motion for summary judgment be denied as to 18 plaintiff’s Eighth Amendment excessive force claim against defendant Harrison and granted as to 19 plaintiff’s Eighth Amendment claim of deliberate indifference against defendants Pfadt and 20 Harrison; 21 22 2. This action proceed to trial on plaintiff’s Eighth Amendment excessive force claim against defendant Harrison; and 23 3. This matter be referred back to the undersigned for further pretrial proceedings. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 26 days after being served with these findings and recommendations, any party may file written 10 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 objections shall be filed and served within fourteen days after service of the objections. The 4 parties are advised that failure to file objections within the specified time may waive the right to 5 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: December 8, 2011. 7 8 9 10 11 12 dice2608.msj 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11