Smith v. Madsen et al, No. 3:2021cv04590 - Document 32 (N.D. Cal. 2022)
Court Description: ORDER DENYING MOTION FOR SUMMARY JUDGMENT; GRANTING EXTENSION OF TIME; STAYING AND REFERRING CASE TO PRO SE PRISONER MEDIATION PROGRAM. Signed by Judge Jacqueline Scott Corley on June 24, 2022. (ahm, COURT STAFF) (Filed on 6/24/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)Order mailed to Petitioner on June 24, 2022.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANTHONY SMITH, 7 Plaintiff, 8 v. 9 H. MADSEN, et al., 10 Defendants. United States District Court Northern District of California 11 Case No. 21-cv-04590-JSC ORDER DENYING MOTION FOR SUMMARY JUDGMENT; GRANTING EXTENSION OF TIME; STAYING AND REFERRING CASE TO PRO SE PRISONER MEDIATION PROGRAM Re: Dkt. Nos. 20, 27 INTRODUCTION 12 Plaintiff, a California prisoner proceeding without being represented by an attorney, filed 13 14 this civil rights complaint under 42 U.S.C. ' 1983 against three correctional officers at the 15 Correctional Training Facility: H. Madsen, S. Maiorana, and V. Garcia. The Court ordered 16 Defendants to file a motion for summary judgment, if any, on or before October 29, 2021. (ECF 17 No. 7.) Only Defendant Garcia filed a motion for summary judgment. (ECF No. 20) Plaintiff 18 filed an opposition (ECF No. 29), and Garcia filed a reply brief (ECF No. 31).1 For the reasons 19 discussed below, the motion for summary judgment is DENIED, and the case is referred to 20 Magistrate Judge Illman and the Pro Se Prisoner Mediation Program for mediation proceedings. BACKGROUND 21 22 Except where otherwise specified, the parties agree on the following facts.2 23 At approximately 10:00 a.m. on November 20, 2019, Defendants Maiorana and Madsen 24 went to Plaintiff’s cell to escort him to a meeting. (ECF No. 1 at 9.)3 According to Plaintiff, 25 26 27 28 Plaintiff’s motion for an extension of time to file an opposition is GRANTED. The alleged facts in the Complaint that are within Plaintiff’s knowledge may serve as evidence because the Complaint is verified. (ECF No. 1.) See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating verified complaint as affidavit opposing summary judgment where allegations were based on plaintiff’s personal knowledge). 3 This Order’s citations to pages in filed documents uses the electronic docket’s pagination, not the 1 2 United States District Court Northern District of California 1 Madsen said that she would conduct a “random” search of Plaintiff because Plaintiff had 2 previously filed administrative grievances against her. (Id.) Plaintiff requested a supervisor be 3 present, and for Maiorana instead of Madsen to search him because Plaintiff believed that Madsen 4 had a history of assaulting inmates. (Id. at 10.) Defendants assert that Plaintiff resisted the search 5 (ECF Nos. 20-3 at 2, 20-4 at 2), which Plaintiff denies (ECF No. 1 at 10.) According to Plaintiff, 6 Maiorana “aggressively and using force and his body weight, lunged into Plaintiff's back, 7 slamming Plaintiff's body into the wall” and causing him “excruciating” pain, and Madsen then 8 handcuffed Plaintiff’s hands “very tight” while Maiorana kept his body weight pressed against 9 Plaintiff. (Id.) Madsen searched Plaintiff and found in his pocket a bottle of liquid that later 10 proved to be morphine and codeine. (ECF No. 20-3 at 2.) Plaintiff was examined by prison 11 medical personnel who omitted from their medical report Plaintiff’s statement of being in 12 “extreme pain.” (Id. at 11.) Madsen and Maiorana filed incident reports describing their version 13 of the events. (ECF No. 20-3 at 4-5; 20-4 at 4-5.) Plaintiff states that these reports are false. 14 (ECF No. 1 at 11.) According to Plaintiff, Defendant Garcia was present during the incident, but she did not 15 16 do or say anything to stop Madsen or Maiorana from using force. (Id. at 10; ECF No. 20-5 at 12.) 17 Plaintiff’s administrative grievance regarding the incident, filed approximately two weeks later, 18 also asserted that Garcia was present. (ECF No. 29 at 23.) Garcia denies being at the incident, 19 however, and states that she was working in her office that morning and was in the restroom when 20 Madsen’s personal alarm sounded. (ECF No. 20-2 at 2.) Madsen and Maiorana also state that 21 Garcia was not present, and their incident reports do not mention her. (ECF Nos. 20-3 at 2, Exh. 22 A; 20-4 at 2, Exh. A.) Garcia did not write an incident report. (ECF No. 1 at 11; No. 20-2 at 2.) DISCUSSION 23 24 25 26 I. Standard of Review Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a 27 28 page numbers on the documents themselves. 2 1 matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of 2 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material 3 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the 4 nonmoving party. Id. The moving party for summary judgment bears the initial burden of identifying those United States District Court Northern District of California 5 6 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 7 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 8 party has met this burden of production, the nonmoving party must go beyond the pleadings and, 9 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for 10 trial. Id. If the nonmoving party fails to produce enough evidence to show a genuine issue of 11 material fact, the moving party wins. Id. At summary judgment, the judge must view the evidence in the light most favorable to the 12 13 nonmoving party. Tolan v. Cotton, 572 U.S. 650, 652 (2014). If more than one reasonable 14 inference can be drawn from undisputed facts, the trial court must credit the inference in favor of 15 the nonmoving party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). 16 II. Discussion 17 1. Eighth Amendment 18 Plaintiff claims that Garcia violated his Eighth Amendment rights because she failed to 19 intervene in the use of excessive force by Maiorana and Madsen. In a state prisoner’s claim that a 20 prison official used excessive force, “the unnecessary and wanton infliction of pain . . . constitutes 21 cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 22 312, 319 (1986) (ellipsis in original) (internal quotation and citation omitted). Officers may be 23 held liable if they have an opportunity to intercede when their fellow officers use unconstitutional 24 force but fail to do so. See Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). 25 Garcia argues that she is entitled to summary judgment both on the merits and on qualified 26 immunity grounds because there is no triable issue of fact as to whether she was present when the 27 other Defendants used force. This issue is material to Plaintiff’s Eighth Amendment claim 28 because if she was absent, she could not have intervened. In particular, Garcia argues that 3 United States District Court Northern District of California 1 “[g]iven the overwhelming evidence that Garcia was not present at the incident, Smith must 2 present unusually strong evidence to maintain a claim against Garcia.” (Dkt. No. 20 at 6.) Garcia 3 claims that Smith’s statements as to Garcia’s presence are insufficient. (Id. (“Given the strength 4 of Garcia’s evidence and the weakness of Smith’s unsubstantiated claim, the Court must grant 5 summary judgment in Garcia’s favor”).) 6 Garcia’s recitation of the summary judgment standard is incorrect. First, in considering a 7 summary judgment motion, the trial court is not allowed to weigh the evidence, that is, determine 8 its “strength” or that it is “overwhelming.” See Tolan v. Cotton, 572 U.S. 650, 656 (2014). 9 Second, the trial court cannot disregard declarations or other sworn statements merely because 10 they are self-serving and (allegedly) uncorroborated. See, e.g., Nigro v. Sears, Roebuck and Co., 11 784 F.3d 495, 497-98 (9th Cir. 2015); Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 12 2001) (“self-serving affidavits are cognizable to establish a genuine issue of material fact so long 13 as they state facts based on personal knowledge and are not too conclusory”). Instead, in ruling on 14 a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all 15 justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 16 251 (1986). Applying this correct summary judgment standard, Garcia has not met her burden of 17 18 showing that there is no genuine dispute as to her presence at the alleged incident. The record 19 includes two sworn statements by Plaintiff --- in his verified Complaint and in his deposition --- 20 that he witnessed Garcia at the scene when the other Defendants used force against him. (ECF 21 No. 1 at 10; ECF No. 20-5 at 12.)4 As this evidence must be treated as true, there is a genuine 22 dispute as to whether Garcia was present. Further, approximately two weeks after the incident, 23 Plaintiff filed an administrative grievance in which he states that Garcia was present. (ECF No. 29 24 at 23.) Defendants’ sworn statements to the contrary, as well as Garcia’s omission from their 25 incident reports, merely create a genuine dispute. Moreover, there is no evidence --- apart from 26 Defendants’ declarations --- blatantly contradicting Plaintiff’s sworn statements. Cf. Scott v. 27 28 4 Plaintiff also stated in his declaration filed with his opposition papers that Garcia was present, but the Court cannot consider this declaration because it is not signed. (ECF No. 29 at 1.) 4 1 Harris, 550 U.S. 372, 380-83 (2007) (police officer entitled to summary judgment where video 2 evidence blatantly discredited plaintiff’s account). On the record in this case, the genuine dispute 3 about Garcia’s presence during the use of force precludes granting her summary judgment. See, 4 e.g., Orn v. City of Tacoma, 949 F.3d 1167, 1171-73, 1178-79 (9th Cir. 2020) (officer not entitled 5 to summary judgment where officer and plaintiff gave conflicting account of whether police 6 officer was in path of plaintiff’s vehicle and nothing in the record blatantly contradicted plaintiff’s 7 account). Garcia also argues that “[b]ecause [she] did not violate any of Smith’s rights, she must be 8 United States District Court Northern District of California 9 granted qualified immunity.” (ECF No. 20 at 10.) A court considering a claim of qualified 10 immunity must determine whether the plaintiff has alleged the deprivation of an actual 11 constitutional right and whether such right was clearly established such that it would be clear to a 12 reasonable officer that his conduct was unlawful in the situation he confronted. Pearson v. 13 Callahan, 555 U.S. 223, 232 (2009). Garcia’s contention that she did not violate Plaintiff’s rights 14 is premised on her faulty argument that there is no genuine dispute of fact as to whether Garcia 15 was present during the use of force.5 For the reasons discussed, there is a genuine dispute as to 16 whether she was present --- and failed to intervene --- during the use of force. Therefore, her 17 argument for summary judgment on qualified immunity grounds fails. 18 2. Retaliation 19 Plaintiff also claims that Garcia violated his First Amendment rights by failing to intervene 20 in and to report that the force was used in retaliation for his previously filing administrative 21 grievances against Madsen. “Within the prison context, a viable claim of First Amendment 22 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 23 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 24 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 25 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 26 (9th Cir. 2005) (footnote omitted). A prisoner may not be retaliated against for using 27 28 5 Garcia makes no argument that the law was not “clearly established.” 5 1 2 Evidence probative of retaliatory motive includes proximity in time between the protected 3 speech and the alleged adverse action, the prison official’s expressed opposition to the speech, and 4 the prison official’s proffered reason for the adverse action was false or pretextual. Shepard v. 5 Quillen, 840 F.3d 686, 689-91 (9th Cir. 2016). Retaliatory motive may also be shown by 6 inconsistency with previous actions, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 7 1288-89 (9th Cir. 2003). 8 9 United States District Court Northern District of California administrative grievance procedures. Id. at 567. A reasonable trier of fact could find that Garcia refused to intervene or document the use of force in retaliation for Plaintiff’s prior grievances. From Plaintiff’s verified allegations, a trier of 10 fact could find that Madsen, Maiorana and Garcia entered Plaintiff’s cell and, while all were 11 present, Maiorana told Plaintiff that he needed to be brought to Lieutenant Landrum for an 12 interview related to his grievance filed against Madsen. While Plaintiff was escorted from the 13 cell, Madsen, in effect, told Plaintiff they were going to search him because he likes to file 14 grievances against Madsen. The alleged force then occurred while Garcia stood by and watched. 15 (Dkt. No. 1 at 9-10.) 16 Drawing all reasonable inferences in Plaintiff’s favor from these facts, a trier of fact could 17 find that Garcia refused to intervene and document the use of force in retaliation for Plaintiff’s 18 grievances given that the grievances were the stated reason for the search that led to the force. 19 Further, a trier of fact could find that Garcia’s stated explanation for her conduct—she was not 20 there—was false, thus lending further support for the retaliation claim. And, in terms of proximity 21 in time, accepting Plaintiff’s allegations as true, Madsen stated that Plaintiff’s grievances were the 22 reason for the search (thus leading to the force) at the time Garcia did not intervene and document 23 the force, further supporting a finding of a retaliatory motive. 24 Garcia also argues that she has “taken no adverse action against” Plaintiff. (ECF No. 20 at 25 5.) Harm that “would chill a ‘person of ordinary firmness’ from complaining” is sufficient to 26 establish adverse action for purposes of a retaliation claim. Shepard v. Quillen, 840 F.3d 686, 691 27 (9th Cir. 2016). Garcia argues that her failure to report the use of force was not adverse because 28 the other Defendants reported it. Garcia ignores the principal adverse action asserted by Plaintiff, 6 1 namely her failure to intervene in the use of force. A reasonable trier of fact could determine that 2 Garcia’s failure to intervene in the use of force against Plaintiff because he had previously filed an 3 administrative grievance would chill a person of ordinary firmness from filing grievances in the 4 future. 5 Garcia’s arguments for summary judgment on Plaintiff’s retaliation claim fail because 6 there are triable factual issues as to whether she took adverse action that chilled his speech because 7 of his prior administrative grievance against Madsen. CONCLUSION 8 9 United States District Court Northern District of California 10 In light of the foregoing, Garcia’s motion for summary judgment is DENIED. Prior to setting this case for trial, the Court finds good cause for the parties to attempt to 11 resolve their dispute in mediation proceedings. Accordingly, this case is REFRERRED to 12 Magistrate Judge Illman pursuant to the Pro Se Prisoner Mediation Program. 13 The mediation proceedings shall take place within 120 days of the date this order is 14 entered. Magistrate Judge Illman shall coordinate a time and date for a mediation proceeding with 15 all interested parties or their representatives and, within five days after the conclusion of the 16 mediation proceedings, file a report. All mediation proceedings shall be confidential and no 17 statement made therein will be admissible in any proceedings in the case, unless the parties 18 otherwise agree. No part of the mediation proceeding shall be reported, or otherwise recorded, 19 without the consent of the parties, except for any memorialization of a settlement. 20 All further proceedings in this case except those related to the mediation proceedings, as 21 ordered or permitted by Magistrate Judge Illman, are STAYED pending completion of the 22 mediation proceedings. 23 The clerk shall send a copy of this order to Magistrate Judge Robert Illman. 24 This Order disposes of Docket Nos. 20 and 27. 25 IT IS SO ORDERED. 26 Dated: June 24, 2022 27 JACQUELINE SCOTT CORLEY United States District Judge 28 7
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