Buchanan v. Garza et al, No. 3:2008cv01290 - Document 125 (S.D. Cal. 2012)
Court Description: ORDER denying Plaintiff's 103 Motion for Summary Judgment; granting in part and denying in part Defendants' 106 Partial Cross-Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 3/27/12. (All non-registered users served via U.S. Mail Service)(cge)
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Buchanan v. Garza et al Doc. 125 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 WHITTIER BUCHANAN, CDCR #K-02554 Plaintiff, 13 14 Civil No. vs. 15 16 17 18 E. GARZA; L. FUGA; R. BAKER; R. LIMON; A. SALCEDO; D. HODGE, 08cv1290 BTM (WVG) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ PARTIAL CROSSMOTION FOR SUMMARY JUDGMENT [ECF Nos. 103, 106] Defendants. 19 20 21 I. 22 PROCEDURAL BACKGROUND 23 Whittier Buchanan (“Plaintiff”), a state prisoner currently incarcerated at Kern Valley 24 State Prison located in Delano, California, proceeding pro se and in forma pauperis, has filed 25 this civil rights action pursuant to 42 U.S.C. § 1983. Defendants initially moved to dismiss 26 Plaintiff’s First Amended Complaint in 2010. The Court issued a ruling in which the Court 27 dismissed all claims against Defendants Verkouteren, Garcia, Pederson and Contreras without 28 leave to amend. See July 27, 2010 Order at 11. The Court also granted Defendants’ Motion 08cv1290 BTM (WVG) Dockets.Justia.com 1 to Dismiss Plaintiff’s access to courts claim, conspiracy claim and all state law claims. Id. 2 Defendants Sterling and Grannis brought a second Motion to Dismiss as they had been served 3 with Plaintiff’s First Amended Complaint after the initial Defendants had moved to dismiss the 4 claims against them. On October 15, 2010, the Court dismissed all claims against Defendants 5 Sterling and Grannis. See Oct. 15, 2010 Order at 12. Accordingly, the only remaining 6 Defendants in this action are Garza, Fuga, Baker, Limon, Salcedo and Hodge. The remaining 7 claims are Plaintiff’s Eighth Amendment excessive force, Eighth Amendment deliberate 8 indifference to serious medical needs and retaliation claims. 9 Plaintiff filed a Motion for Summary Judgment as to all claims on August 9, 2011 [ECF 10 No. 103]. Defendants Garza, Fuga, Baker, Limon and Salcedo filed a Cross-Motion for Partial 11 Summary Judgment as to Plaintiff’s Eighth Amendment deliberate indifference and retaliation 12 claims on September 30, 2011 [ECF No. 106]. The Court notified Plaintiff of the requirements 13 for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 14 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [ECF No. 112]. All parties 15 have filed an Opposition to the respective Motions [ECF Nos. 108, 114]. Neither party has filed 16 a Reply to either Opposition. 17 II. 18 FACTUAL BACKGROUND1 19 In his First Amended Complaint, Plaintiff alleges that the events that gave rise to this 20 action occurred while he was incarcerated at the Richard J. Donovan Correctional Facility 21 (“RJD”) from February 7, 2007, to October 23, 2007. (See FAC at 1.) In 2007, Plaintiff had 22 a pending lawsuit against the California Substance Abuse Treatment Facility (“CSATF”) for 23 which he requested that Defendant Sterling, the Legal Technician Assistant, provide him with 24 copies of legal documents. (Id. at 4.) Plaintiff claims that Defendant Sterling’s “lack of legal 25 assistance” caused Plaintiff to “miss his Court deadline.” (Id.) Because he claims that 26 27 28 1 The Court refers to the following facts based only on Plaintiff’s version of the events as set forth in his First Amended Complaint. To the extent that Defendants offer a different version of the facts, that will be noted in the discussion and analysis set forth below. 2 08cv1290 BTM (WVG) 1 Sterling’s actions “hindered his efforts to process his legal claims,” Plaintiff filed an 2 administrative grievance against Sterling. (Id.) 3 Plaintiff claims that when Sterling became aware of Plaintiff’s grievances, she began to 4 lose or misplace Plaintiff’s legal documents and refused him access to the prison law library. 5 (Id.) As a result, Plaintiff’s lawsuit was dismissed. (Id.) 6 Plaintiff further claims that Defendants Salcedo, Baker and Limon “were not supplying 7 Plaintiff with indigent envelopes,” so he filed an administrative grievance against Salcedo, 8 Baker and Limon. (Id.) Plaintiff informed Salcedo that he had pending litigation, which is why 9 he needed the envelopes, and requested her assistance to process his legal mail. (Id.) Because 10 Salcedo refused to do so, Plaintiff filed another administrative grievance against Salcedo. (Id.) 11 Plaintiff alleges that “in retaliation, Defendant Salcedo conspired with Defendants’ Baker and 12 Limon” to not “pick up/process Plaintiff’s legal mail to the courts.” (Id.) 13 On May 30, 2007, Plaintiff was standing outside of the “program office” when 14 Defendant Garza emerged from the office and “gave Plaintiff a direct order to ‘stop filing 15 602's!’” When Plaintiff attempted to explain why he needed to file the grievances, Garza 16 “abruptly cut Plaintiff off yelling ‘[racial expletive], you don’t have any rights, you are a 17 criminal, criminals don’t have rights.’” (Id.) Garza continued to use racially derogatory 18 language towards him. (Id.) Plaintiff claims Defendant Garza “yanked his [stick] from his 19 waistbelt” and ordered Plaintiff to “get down.” (Id.) Plaintiff complied by laying down on his 20 stomach at which time Garza ordered Defendant Fuga and “Jane Doe” to “cuff him.” (Id.) 21 Plaintiff informed Defendants Fuga and Doe as they “began to jerk Plaintiff’s arms behind his 22 back” that he had a medical chrono indicating that Plaintiff had a disability that provided for 23 him to be handcuffed in the front and not behind his back due to a herniated disk. (Id.) 24 Defendants Fuga and Doe ignored this information and were “kneeing Plaintiff roughly in his 25 back, neck and the lower parts” of his body. (Id.) Plaintiff claims that a number of medical 26 care employees and correctional officers observed this altercation but failed to protect him from 27 injury. 28 /// 3 08cv1290 BTM (WVG) 1 Plaintiff cried out “you’re hurting me.” (Id. at 6.) “Upon hearing this, Defendant Garza 2 gave Defendants Jane Doe and Fuga a direct order to ‘hurt him.’” (Id.) Plaintiff claims that 3 Fuga and Doe “became even more malicious and sadistic” by “jerk[ing] twice on Plaintiff’s left 4 arm” which resulted in an “audible popping sound.” (Id.) Plaintiff claims Defendant Garza 5 continued to yell racial expletives towards him and ordered Fuga and Doe to stand Plaintiff up. 6 (Id.) As Plaintiff was crying, he claims that Defendant Garza “saw that he had actually 7 ‘silenced’ Plaintiff” and ordered Fuga to take Plaintiff back to his cell. (Id.) Plaintiff asked 8 Fuga to take him to the infirmary as he was in “extreme pain” but Fuga refused. 9 On August 16, 2007, Plaintiff claims that he was asked by Defendant Hodge to “snitch” 10 on another inmate. (Id.) When Plaintiff refused, Hodge took Plaintiff’s prescription sunglasses. 11 (Id.) Because Plaintiff continued to refuse to be a “snitch,” and due to the fact that Plaintiff 12 filed a grievance against him, Hodge began acts of retaliation against Plaintiff. (Id.) Plaintiff 13 claims that Hodge would take personal property from Plaintiff and give them to other inmates. 14 (Id. at 7.) Plaintiff alleges that Hodge would refuse to allow Plaintiff to attend church services 15 or sing in the prison’s gospel choir. (Id.) 16 III. 17 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 18 A. Summary Judgment -- Standard of Review 19 Summary judgment is appropriate if there is no genuine issue as to any material fact and 20 the moving party is entitled to a judgment as matter of law. FED. R. CIV. P. 56(a). The moving 21 party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. 22 Kress & Co., 398 U.S. 144, 152 (1970). The burden then shifts to the opposing party to provide 23 admissible evidence beyond the pleadings to show that summary judgment is not appropriate. 24 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986). The opposing party’s evidence is to 25 be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty 26 Lobby, Inc., 477 U.S. 242, 256 (1986). 27 However, to avoid summary judgment, the opposing party cannot rest solely on 28 conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); 4 08cv1290 BTM (WVG) 1 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Instead, the nonmovant 2 must designate which specific facts show that there is a genuine issue for trial. Anderson, 477 3 U.S. at 256; Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). 4 Cross-motions for summary judgment do not necessarily mean that there are no disputed 5 issues of material fact, and do not necessarily permit the court to render judgment in favor of 6 one side or the other. Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). Instead, the court 7 must consider each motion separately to determine whether any genuine issue of material fact 8 exists. Id. A “material” fact is one that is relevant to an element of a claim or defense and 9 whose existence might affect the outcome of the suit. Matsushita Elec. Indus. Co., Ltd. v. 10 Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is thus determined by 11 the substantive law governing the claim or defense. Anderson, 477 U.S. at 252; Celotex, 477 12 U.S. at 322; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Disputes over irrelevant or 13 unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Service, Inc. v. 14 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. 15 at 248).) 16 B. General Standards for § 1983 liability 17 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 18 acting under color of state law committed the conduct at issue; and (2) that the conduct deprived 19 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 20 United States. 42 U.S.C. § 1983. 21 C. Retaliation claims 22 First, both Plaintiff and Defendants move for summary judgment in their favor as to 23 Plaintiff’s retaliation claims. Of fundamental import to prisoners are their First Amendment 24 “right[s] to file prison grievances,” Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), and to 25 “pursue civil rights litigation in the courts.” Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 26 1995). Without those bedrock constitutional guarantees, inmates would be left with no viable 27 mechanism to remedy prison injustices. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 28 “And because purely retaliatory actions taken against a prisoner for having exercised those 5 08cv1290 BTM (WVG) 1 rights necessarily undermine those protections, such actions violate the Constitution quite apart 2 from any underlying misconduct they are designed to shield.” Id. (citing Pratt v. Rowland, 65 3 F.3d 802, 806 & n.4 (9th Cir. 1995)). 4 “[A] viable claim of First Amendment retaliation entails five basic elements: (1) An 5 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 6 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 7 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 8 goal.” Rhodes, 408 F.3d at 567-68 (footnote omitted) (citing Resnick v. Hayes, 213 F.3d 443, 9 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)). 1. 10 First Amendment retaliation claims against Salcedo, Baker and Limon 11 12 In his First Amended Complaint, Plaintiff makes allegations that Defendants Salcedo, 13 Baker and Limon retaliated against him because he filed administrative grievances complaining 14 of actions these Defendants had taken. (See FAC at 4; see also Pl.’s Memo of Ps & As in Supp. 15 of MSJ at 16.) Initially, Plaintiff alleges that he requested indigent envelopes from Defendant 16 Salcedo after telling her that he had a lawsuit “pending in the courts.” (FAC at 4.) Plaintiff 17 alleges that Defendant Salcedo responded to this request by refusing to provide the indigent 18 envelopes and refusing to process his legal mail. (Id.) 19 On March 1, 20007, Plaintiff filed an administrative grievance claiming that he was “not 20 receiving my monthly allotment of indigent envelopes.” (See Pl.’s Opp’n on March 12, 2007, 21 Ex. H, Inmate/Parolee Appeal Form, Log. No. RJD-07-907, dated Mar. 1, 2007.) On March 22 12, 2007, prior to receiving the response from his previous grievance, Plaintiff submitted an 23 administrative grievance claiming Defendant Salcedo refused to process his legal mail. (See 24 Pl.’s Mot., Ex. L, Inmate/Parolee Appeal Form, Log. No. RJD-O7-1095, dated Mar. 12, 2007). 25 In May of 2007, Plaintiff claims that there were further incidents in which Defendants 26 Baker and Limon, “acting in agreement with Defendant Salcedo,” refused to process his legal 27 mail because Plaintiff had filed a grievance against Defendant Salcedo on March 12, 2007. 28 (FAC at 4.) 6 08cv1290 BTM (WVG) 1 However, there are simply insufficient facts in the record to support a retaliatory claim 2 against Defendants Salcedo, Baker or Limon. In order to prevail on Plaintiff’s retaliation claim, 3 he “must show that his protected conduct was ‘the substantial or motivating factor behind the 4 defendant’s conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Soranno’s 5 Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). Plaintiff argues in his moving 6 papers and Opposition that it was clear that Defendants were retaliating against him by failing 7 to provide indigent envelopes, and he specifically points to the grievance that he filed on March 8 1, 2007, as evidence of those acts of retaliation. (See Pl.’s Opp’n at 7.) However, the initial 9 grievance Plaintiff filed with respect to the alleged lack of indigent envelopes made no mention 10 of retaliatory acts nor did it mention any of the Defendants by name. (See Pl.’s Opp’n, Ex. H.) 11 Nowhere in this grievance did Plaintiff ever indicate that he was being denied indigent 12 envelopes by Defendants because he had filed previous civil actions. There is just no evidence 13 in the record which would indicate that Defendants were aware of the previous litigation and 14 that this hypothetical knowledge was the “substantial and motivating factor” behind the alleged 15 denial of indigent envelopes. Brodheim, 584 F.3d at 1271. 16 Second, to the extent that Plaintiff claims that Defendant Salcedo refused to process his 17 legal mail on March 12, 2007, because of the grievance he claimed he filed against Salcedo on 18 March 1, 2007, again, this allegation is unsupported by the record. As stated above, the 19 grievance filed by Plaintiff on March 1, 2007, does not identify any correctional officer by name 20 nor is there any evidence that any of the named Defendants were aware that Plaintiff had filed 21 this grievance. Plaintiff did file a grievance in which he named Defendant Salcedo on March 22 12, 2007. (See Pl.’s Ps & As in Supp. of MSJ, Ex. L). In this grievance, Plaintiff states that 23 Defendant Salcedo refused to process his legal mail on March 12, 2007, which he claims 24 “den[ied] my access to the court(s).” Id. Nowhere in that grievance does Plaintiff even suggest 25 that Defendant Salcedo’s actions were in retaliation for Plaintiff’s exercising his constitutional 26 rights. Plaintiff offers no other evidence to support his claims of retaliation. Moreover, Plaintiff 27 does not allege nor does he point to any evidence in the record that Defendant Salcedo, herself, 28 took any “adverse action” against him following the grievance that he filed on March 12, 2007. 7 08cv1290 BTM (WVG) 1 In addition, both Baker and Limon have declared that they were unaware that Plaintiff 2 had filed a grievance against either of them “or any other officer.” (Declaration of R. Baker at 3 ¶ 8; Declaration of R. Limon at ¶ 7.) Plaintiff’s only allegation with regard to these two 4 Defendants is his claim that Salcedo “told [Baker and Limon] that Plaintiff filed a 602 on her” 5 but he offers no evidence to support this assertion. (FAC at 4.) 6 evidence to support his claim that the alleged refusal to process his legal mail was in retaliation 7 for filing previous grievances against other correctional officers. Rather, Plaintiff argues in his 8 opposition that his retaliation claim against Baker and Limon is supported by a grievance he filed 9 against them on May 23, 2007. (See Pl.’s Opp’n at 5-6, Ex. B, Inmate/Parolee Appeal Form, 10 Log No. RJD-07-1466, dated May 23, 2007.) This grievance complains of behavior that Plaintiff 11 alleges occurred on May 22, 2007, by Defendants Limon and Baker but fails to make any claims 12 that their actions were in retaliation for a grievance filed in March of 2007 against Salcedo. 13 Thus, the Court finds that Plaintiff has offered no evidence to create a triable issue of material 14 fact with regard to his claims of retaliation against Baker, Limon or Salcedo because he has 15 failed to show that his filing of a grievance or previous litigation was the “substantial” or 16 “motivating” factor behind their alleged conduct. Soranno’s Gasco, Inc., 874 F.2d at 1314. Plaintiff has offered no 17 Accordingly, Plaintiff’s Motion for Summary Judgment as to his retaliation claims against 18 Defendants Baker, Limon and Salcedo is DENIED and Defendants’ Limon, Baker and 19 Salcedo’s partial Cross-Motion for Summary Judgment is GRANTED as to Plaintiff’s 20 retaliation claims. 21 2. First Amendment retaliation claims against Hodge 22 Defendant Hodge moves for summary judgment as to the retaliation claims against him. 23 Plaintiff also moves for summary judgment as to this claim. Plaintiff alleges that Defendant 24 Hodge wanted Plaintiff to “snitch” on another inmate. (See FAC at 6.) When Plaintiff allegedly 25 refused to “snitch,” and following Plaintiff’s filing of a grievance against Hodge, Plaintiff 26 alleges Hodge began to take his personal items from him and give them to other inmates. (Id.) 27 In support of their Motion, Defendants argue that Plaintiff has not alleged that he was 28 exercising his First Amendment rights. (See Defs.’ Memo of Ps & As in Supp. of MSJ at 9.) 8 08cv1290 BTM (WVG) 1 Specifically, Defendants maintain that the act of refusing to “snitch” does not fall under the 2 purview of the First Amendment. (Id.) The Ninth Circuit has held, in a matter involving an 3 alleged vindictive prosecution, that “there is no constitutional right not to snitch.” Paguio v. 4 Acosta, 114 F.3d 928, 930 (9th Cir. 1997) (citing United States v. Gardner, 611 F.2d 770, 773 5 (9th Cir. 1990)). In addition, it is well settled that in the First Amendment context “a prison 6 inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner 7 or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 8 U.S. 817, 822 (1974). However, while it may be true that the refusal to “snitch” is not 9 considered “protected conduct,” Plaintiff has also stated that he was retaliated against for filing 10 a 602 against Defendant Hodge. (See FAC at 7.) Thus, it is not the allegation of refusing to 11 snitch that forms the sole basis of Plaintiff’s claim of retaliation, it is also his claim that he filed 12 an administrative grievance complaining of Defendant Hodge’s insistence that he snitch on a 13 fellow inmate that led to further retaliatory acts by Defendant Hodge. (See Pl.’s Memo of Ps & 14 As in Supp. of MSJ, Ex. K, Inmate/Parolee Appeal Form, Log. No. RJD-07-2086, dated August 15 11, 2007.) 16 In their Opposition to Plaintiff’s Motion for Summary Judgment, Defendants 17 acknowledge that Plaintiff’s allegations in his verified First Amended Complaint as to Defendant 18 Hodge are “disputed.” (See Defs.’ Opp’n at 5.) They offer the Declaration of Defendant Hodge 19 in which he denies every allegation of retaliatory conduct made by Plaintiff. (Id., Hodge Decl. 20 at ¶¶ 4-8.) These types of arguments made by Defendants and Plaintiff both would require the 21 Court to make credibility determinations that are not permissible at the summary judgment stage. 22 See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005). Thus, 23 there remains a triable issue of material fact as to whether Defendant Hodge retaliated against 24 Plaintiff for exercising his First Amendment rights by filing a grievance against Defendant 25 Hodge. 26 Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment of his 27 retaliation claims against Defendant Hodge and DENIES Defendant Hodge’s Motion for 28 Summary Judgment of Plaintiff’s retaliation claims. 9 08cv1290 BTM (WVG) 1 D. 2 Plaintiff and Defendants Garza and Fuga move for summary judgment as to Plaintiff’s 3 Eighth Amendment - Deliberate Indifference to Serious Medical Needs claims that they acted with deliberate indifference to his serious medical needs.2 1. 4 Standard of Review 5 The Eighth Amendment prohibits punishment that involves the “unnecessary and wanton 6 infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428 7 U.S. 153, 173 (1976)). The Eighth Amendment’s cruel and unusual punishment clause is 8 violated when prison officials are deliberately indifferent to a prisoner’s serious medical needs. 9 Estelle, 429 U.S. at 105. “Medical” needs include a prisoner’s “physical, dental, and mental 10 health.” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). 11 To show “cruel and unusual” punishment under the Eighth Amendment, the prisoner must 12 point to evidence in the record from which a trier of fact might reasonably conclude that 13 Defendants’ medical treatment placed Plaintiff at risk of “objectively, sufficiently serious” harm 14 and that Defendants had a “sufficiently culpable state of mind” when they either provided or 15 denied him medical care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995) (citation and 16 internal quotations omitted). Thus, there is both an objective and a subjective component to an 17 actionable Eighth Amendment violation. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002);. 18 Although the “routine discomfort inherent in the prison setting” is inadequate to satisfy 19 the objective prong of an Eighth Amendment inquiry, see Johnson v. Lewis, 217 F.3d 726, 731 20 (9th Cir. 1999), the objective component is generally satisfied so long as the prisoner alleges 21 facts to show that his medical need is sufficiently “serious” such that the “failure to treat [that] 22 condition could result in further significant injury or the unnecessary and wanton infliction of 23 pain.” Clement, 298 F.3d at 904 (quotations omitted). 24 /// 25 /// 26 /// 27 2 28 Defendants have not moved for summary judgment with regard to Plaintiff’s Eighth Amendment excessive force claims. 10 08cv1290 BTM (WVG) 1 However, the subjective component requires the prisoner to demonstrate facts which 2 show that the officials had the culpable mental state, which is “‘deliberate indifference’ to a 3 substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting 4 Farmer v. Brennan, 511 U.S. 825, 835 (1994)). “Deliberate indifference” is evidenced only 5 when “the official knows of and disregards an excessive risk to inmate health or safety; the 6 official must both be aware of the facts from which the inference could be drawn that a 7 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. 8 at 837. Inadequate treatment due to “mere medical malpractice” or even gross negligence, does 9 not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 10 F.2d 1332, 1334 (9th Cir. 1990). 11 While deliberate indifference can be manifested if a doctor or prison guard intentionally 12 denies or delays access to medical care or otherwise interferes with medical treatment already 13 prescribed, see Estelle, 429 U.S. at 104-05, the delay must also lead to further injury or be 14 somehow harmful. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (noting that harm 15 caused by delay need not necessarily be “substantial”), overruled on other grounds, WMX 16 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 2. 17 Application to Plaintiff’s Allegations 18 Here, Plaintiff alleges an altercation occurred between himself and Defendants Garza and 19 Fuga on May 30, 2007. (See FAC at 6.) Following the altercation, Plaintiff claims he requested 20 that Defendant Fuga “take him to the infirmary as [Plaintiff was] in extreme pain.” (Id.) 21 Plaintiff further claims that “Defendant Fuga denied Plaintiff’s request for medical care with 22 reckless and deliberate indifference.” (Id.) While those are the allegations in Plaintiff’s verified 23 First Amended Complaint, Defendants argue that the evidence in the record does not support a 24 finding that Plaintiff had a serious medical need on May 30, 2007, and thus cannot overcome the 25 first hurdle in establishing an Eighth Amendment deliberate indifference claim. (See Defs.’ 26 Memo of Ps & As in Support of MSJ at 14-15.) 27 /// 28 /// 11 08cv1290 BTM (WVG) 1 Defendants submit the Declaration of D. Salinas, Health Records Technician II at Kern 2 Valley State Prison to support their claim that Plaintiff has no evidence of a serious medical 3 need. Specifically, Defendants contend that while Plaintiff alleges that he suffered from 4 shoulder pain and hearing loss as a result of the altercation on May 30, 2007, he did not actually 5 request any medical attention until thirteen days later. (See Salinas Decl., Ex. A.) In this 6 Exhibit, Defendants attach Plaintiff’s “Requests for Medical Care at R.J. Donovan State Prison,” 7 dated after May 30, 2007. (Salinas Decl. at ¶ 5.) 8 Defendants maintain that records reflect that Plaintiff’s claims of shoulder and back 9 injuries were “pre-existing” and not the cause of the altercation that occurred on May 30, 2007. 10 Plaintiff does not dispute this claim and acknowledges that he had these pre-existing medical 11 conditions but he contends that the altercation resulted in a “dislocated shoulder” for which 12 Defendants refused to provide treatment. (See Pl.’s Memo of Ps & As in Supp. of MSJ at 13.) 13 In support of Plaintiff’s claim he submits a document entitled “Comprehensive Accommodation 14 Chrono” which has an apparent notation indicating that Plaintiff has a dislocated shoulder on 15 July 13, 2007. (See Pl.’s Opp’n to Defs.’ MSJ, Exhibit K, Comprehensive Accommodation 16 Chrono, dated July 13, 2007.) Plaintiff also claims it was “days later” that he suffered serious 17 back pain. (Pl.’s Memo of Ps & As in Supp. of MSJ at 13, 14.) 18 Here, Defendants argue, and the Court agrees, there is no evidence in the record that 19 Defendants were aware of a serious medical need on May 30, 2007. The crux of Plaintiff’s 20 allegations is the alleged failure of Defendants to provide access to medical treatment on May 21 30, 2007. Plaintiff’s submission of a document that suggests a dislocated shoulder several weeks 22 after the May 30, 2007, incident, which Defendants correctly point out is not supported by any 23 diagnosis in Plaintiff’s medical records, and his own acknowledgment that the back pain came 24 “days later,” indicate that there is no evidence in the record to show that Plaintiff suffered from 25 a serious medical need on May 30, 2007. (Id.) While Plaintiff in his moving papers and 26 Opposition appears to broaden his claim to an allegation of the denial of medical care for the 27 weeks following May 30, 2007, his only allegation in his First Amended Complaint is a claim 28 of denial of medical care on May 30, 2007, for failing to take him to the infirmary. Plaintiff 12 08cv1290 BTM (WVG) 1 provides no evidence to demonstrate how any of the named Defendants were responsible for his 2 medical care in the days, weeks or months following this incident on May 30, 2007. Thus, the 3 evidence is insufficient to create a genuine issue of material fact to show that Plaintiff’s medical 4 needs were objectively “serious” on May 30, 2007. See Estelle, 429 U.S. at 105. 5 In addition, the record before the Court does not show any triable issue as to the 6 subjective component of an Eighth Amendment inadequate medical care claim against 7 Defendants. See Frost, 152 F.3d at 1128; Farmer, 511 U.S. at 837. In order to justify trial, 8 Plaintiff must point to evidence in the record to show that Defendants were “deliberately 9 indifferent” to his serious medical needs, i.e, that Defendants knew, yet consciously disregarded 10 his pain or the need to provide him constitutionally adequate care. See McGuckin, 974 F.2d 11 at1060. This “subjective approach” focuses only “on what a defendant’s mental attitude actually 12 was.” Farmer, 511 U.S. at 839. Because Plaintiff has failed to provide evidence to dispute 13 Defendants’ assertion that Plaintiff did not have a serious medical need on May 30, 2007, the 14 Court finds no genuine issues of material fact exist as to whether Defendants acted with 15 deliberate indifference to Plaintiff’s serious medical needs. 16 Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment and GRANTS 17 Defendants’ Partial Cross-Motion for Summary Judgment as to Plaintiff’s Eighth Amendment 18 deliberate indifference to serious medical needs claims. Estelle, 429 U.S. at 105. 19 E. Qualified Immunity 20 Defendants move for qualified immunity in regard to Plaintiff’s retaliation claims and 21 Eighth Amendment deliberate indifference to serious medical needs claim. (See Defs.’ Memo 22 of Ps & As in Supp. of X-MSJ at 17-18.) Because the Court has found no triable issue of fact 23 exists as to Plaintiff’s Eighth Amendment deliberate indifference claims or Plaintiff’s retaliation 24 claims against Defendants Limon, Baker or Salcedo, it need not reach any issues regarding 25 qualified immunity on those claims. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no 26 constitutional right would have been violated were the allegations established, there is no 27 necessity for further inquiries concerning qualified immunity.”); County of Sacramento v. Lewis, 28 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which the defense of 13 08cv1290 BTM (WVG) 1 qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation 2 of a constitutional right at all.”). 3 However, Defendant Hodge moves for qualified immunity with respect to the remaining 4 retaliation claim made by Plaintiff. “Government officials enjoy qualified immunity from civil 5 damages unless their conduct violates ‘clearly established statutory or constitutional rights of 6 which a reasonable person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 7 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a 8 qualified immunity defense, the central questions for the court are: (1) whether the facts alleged, 9 taken in the light most favorable to Plaintiff, demonstrate that the Defendant’s conduct violated 10 a statutory or constitutional right; and (2) whether the right at issue was “clearly established” at 11 the time it is alleged to have been violated. Saucier, 533 U.S. at 201. “These two questions 12 may be considered in either order.” Rosenbaum v. Washoe County, 654 F.3d 1001, 1006 (9th 13 Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). 14 Here, Defendant Hodge makes a very brief argument in support of qualified immunity 15 by stating that “Plaintiff’s retaliation claim against him fails as a matter of law, since he does not 16 allege that Hodge retaliated against him for exercising his First Amendment rights.” (Defs.’ 17 Memo of Ps & As in Supp. of MSJ at 19.) This statement is not accurate. Plaintiff alleges in 18 his verified First Amended Complaint that Defendant Hodge “retaliated against Plaintiff because 19 he would not ‘snitch’ on another inmate, and because he filed a 602 on him concerning that 20 incident.” (FAC at 7 (emphasis added).) As stated above, for qualified immunity purposes, the 21 Court must review the factual allegations in the light most favorable to Plaintiff to determine 22 whether Defendant Hodge’s conduct violated Plaintiff’s constitutional rights. Plaintiff claims 23 he had adverse actions taken against him by Defendant Hodge for filing an administrative 24 grievance against Hodge. (See FAC at 7, 11.) The Court finds that these claims are sufficient 25 to deny qualified immunity as to the first prong. 26 Defendants provide no argument to support the second prong of the qualified immunity 27 analysis, which is whether the right to be free from retaliation was “clearly established” at the 28 time it is alleged to have been violated. Saucier, 533 U.S. at 201. The Ninth Circuit opinion 14 08cv1290 BTM (WVG) 1 clearly setting forth the elements of a retaliation claim in a prison setting was decided in 2005. 2 See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). The factual allegations in this case 3 arose in 2007. (See FAC at 1.) Because Defendant Hodge provides no support otherwise, the 4 Court finds that the law relating to retaliation claims in the prison setting was “clearly 5 established” at the time the alleged acts of retaliation had occurred. Thus, the Court finds that 6 Defendant Hodge is not entitled to qualified immunity. 7 F. Eighth Amendment Excessive Force claims 8 Finally, Plaintiff moves for summary judgment in his favor as to his Eighth Amendment 9 excessive force claims. The “core judicial inquiry,” when a prisoner alleges the excessive use 10 of force under the Eighth Amendment, is “not whether a certain quantum of injury was 11 sustained, but rather “whether force was applied in a good-faith effort to maintain or restore 12 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. at 1, 13 7 (1992); see also Whitley v. Albers, 475 U.S. 312, 319-321, (1986). “When prison officials 14 maliciously and sadistically use force to cause harm,” the Supreme Court has recognized, 15 “contemporary standards of decency always are violated . . . whether or not significant injury 16 is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter 17 how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Hudson, 503 18 U.S. at 9; see also Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010) (“An inmate who is 19 gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely 20 because he has the good fortune to escape without serious injury.”) 21 Thus, “[i]n determining whether the use of force was wanton and unnecessary,” the Court 22 must “evaluate the need for application of force, the relationship between that need and the 23 amount of force used, the threat reasonably perceived by the responsible officials, and any 24 efforts made to temper the severity of a forceful response.” Hudson, 503 U.S. at 7 (internal 25 quotation marks and citations omitted). 26 /// 27 /// 28 /// 15 08cv1290 BTM (WVG) 1 Here, Plaintiff contends that he was complying with the orders by Defendants when they 2 “jerk[ed] his arms behind his back,” and later “jerked twice on his left arm” causing an “audible 3 popping sound.” (See FAC at 5-6.; see also Antley Decl., Pl.’s Depo at 14:1-7.) Defendants 4 dispute Plaintiff’s version of the incident and have provided declarations in which they state that 5 Plaintiff was argumentative, aggressive and they believed Plaintiff was a “threat to [their] safety 6 and to the safety and security of the institution and the surrounding staff and other inmates.” 7 (See Decl. of E. Garza at ¶ 4.) 8 Thus, based on this material contradictory testimony, the Court finds genuine issues of 9 material fact exist as to whether Defendants used force in a good faith effort to maintain or 10 restore order, or instead, used force with a “malicious” and “sadistic” intent to do Plaintiff harm. 11 Hudson, 503 U.S. at 7; see also Anderson, 477 U.S. at 255 (noting that “[c]redibility 12 determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts 13 are jury functions, not those of a judge” resolving a motion for summary judgment). 14 Accordingly, Plaintiff’s Motion for Summary Judgment of his Eighth Amendment 15 excessive force claims is DENIED. Because Defendants did not move for summary judgment 16 as to this claim, this claim remains in the action. 17 V. 18 CONCLUSION AND ORDER 19 For all the reasons set forth above, the Court hereby: 20 (1) DENIES Plaintiff’s Motion for Summary Judgment in its entirety [ECF No. 103]; 21 (2) GRANTS Defendants’ Limon, Baker and Salcedo’s partial Cross-Motion for 22 23 24 25 26 27 28 Summary Judgment as to Plaintiff’s retaliation claims [ECF No. 106]; (3) DENIES Defendant Hodge’s partial Cross-Motion for Summary Judgment as to Plaintiff’s retaliation claims; (4) GRANTS Defendants’ partial Cross-Motion for Summary Judgment as to Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claims; and (5) DENIES Defendant Hodge’s partial Cross-Motion for Summary Judgment on qualified immunity grounds. 16 08cv1290 BTM (WVG) 1 Because there are no remaining claims against Defendants Salcedo, Baker and Limon and 2 there is no just reason for delay, the Clerk of Court is directed to enter a final judgment as to 3 these Defendants pursuant to FED. R. CIV. P. 54(b). 4 IT IS SO ORDERED. 5 6 DATED: March 27, 2012 7 8 BARRY TED MOSKOWITZ, Chief Judge United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 08cv1290 BTM (WVG)
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