ALLISON CLAIRE, Magistrate Judge.
Plaintiff William Barker is a state prisoner proceeding in forma pauperis, ECF No. 7, with counsel, ECF No. 53, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint (FAC) filed October 15, 2012.
Pending before the court is defendant's motion for summary judgment. ECF No. 112. Plaintiff filed an opposition, ECF No. 113, and defendant replied, ECF No. 114. This matter was heard before the undersigned on February 28, 2015. Attorneys Scottlynn Hubbard and Stephanie Ross appeared on behalf of plaintiff; defendant was represented by Martin Kosla. Following the hearing, plaintiff was permitted to submit additional briefing and medical evidence, ECF No. 117, and defendant was permitted to submit the report and curriculum vitae of his expert witness, ECF No. 116.
Defendant moves for summary judgment on the ground that plaintiff has failed to establish a relevant material factual dispute that overrides the reasonable inference, based on all the evidence, that defendant's use of force was appropriate and exercised without a culpable state of mind. On these grounds, defendant also contends that he is entitled to qualified immunity.
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact."
When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party."
"In its prohibition of `cruel and unusual punishments,' the Eighth Amendment places restraints on prison officials, who may not . . . use excessive physical force against prisoners."
When determining whether the force was excessive, we look to the "extent of the injury . . ., 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.'"
"The extent of injury may . . . provide some indication of the amount of force applied. . . . [N]ot `every malevolent touch by a prison guard gives rise to a federal cause of action.'"
Government officials are immune from civil damages "unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'"
The parties agree that the following facts are undisputed, or the record before the court so demonstrates. (Disputed facts are noted summarily to provide context to the disputed facts, and are set forth in detail below.)
• Plaintiff William Barker has been incarcerated in the custody of CDCR since June 24, 2004. Plaintiff was housed at the California Medical Facility (CMF) on October 25, 2009 when the incident underlying this action occurred.
• Defendant R. Yassine is employed by CDCR as a Correctional Officer (CO). On October 25, 2009, defendant was on duty as the only CO stationed during third watch (2:00 p.m. to 10:00 p.m.) at CMF's Unit I Grill Gate ("the Gate"), a security checkpoint between the yard and the Facility C housing units and B-1 medical clinic.
• There are signs on both sides of the Gate which state: "Inmates' Notice: No ID Card, No Entrance, and No Exit." When inmates pass through the Gate, they must show their inmate I.D. to the CO on duty.
• On October 25, 2009, plaintiff passed through the Gate without incident when he left his housing unit for yard release.
• Later, at approximately 3:45 p.m., when exiting the yard for yard recall, plaintiff approached the Gate in his wheelchair. Approximately 100 to 150 inmates were returning from the yard at this time, and they all needed to pass through the Gate.
• As plaintiff passed through the Gate, defendant asked plaintiff to show him his Inmate ID. (The parties dispute whether plaintiff showed defendant his ID.)
• Defendant asked plaintiff to show him his medical ducat (notice of appointment)
• Defendant ordered plaintiff to face the wall and submit to a search. Defendant searched plaintiff's shoulders and upper back but was unable to continue the search because plaintiff refused to lean further forward. Defendant activated his alarm to receive the assistance of other officers. When the alarm was cleared, plaintiff was escorted to his scheduled appointment at the medical clinic.
• On November 2, 2009, defendant submitted an RVR about the incident, premised on "Disobeying a Direct Order."
• Plaintiff pursued an administrative appeal against defendant Yassine, alleging excessive force, which was exhausted at the Third Level on January 5, 2011, and affirmed the Second Level decision "that staff did not violate CDCR policy with respect to the issues raised."
• Prior to this incident, on March 10, 2009, a bottle containing methadone was found underneath plaintiff's wheelchair cushion. The discovery was made incident to a clothed body search of plaintiff on an ADA bench and a separate search of his wheelchair.
The parties dispute their interaction on October 25, 2009 as follows.
• Plaintiff alleges that "CMF physicians have diagnosed [him] with having a history of chronic infectious disease and a right femur fracture with open reduction and internal fixation[,] [causing] . . . pain in his back, shoulder and neck. . . . FAC at ¶ 2;
• Plaintiff states that he is designated "DPO" under the
• On October 25, 2009, at approximately 3:45 p.m., plaintiff was in his wheelchair returning from the yard, and was pushed by another inmate through the Gate. When plaintiff got to defendant's post, plaintiff had his ID and ducat out and showed defendant his ID. Pl. Dep. at 32:15-22.
• Defendant asked plaintiff what the ducat was for. Plaintiff responded by putting the ducat in his pocket and "told [defendant ] that he was custody and that my medical issues didn't have anything to do with him."
• Defendant told plaintiff to come back because he was past defendant's post. The inmate who was pushing plaintiff left and plaintiff rolled himself back to defendant's post.
• Defendant "let a lot of people come by and as they were coming by he was reaching taking different stuff off my wheelchair tossing it on the ground."
• Plaintiff states that he "leaned forward as far as I could with my elbows on my wheelchair cushions" and "told him I couldn't go any farther."
• Plaintiff has submitted a copy of a handwritten statement written by CO G. Santos on November 22, 2009, concerning the October 25, 2009 incident, apparently submitted in response to plaintiff's administrative appeal (Log No. CMF-10-M-539).
• Plaintiff contends that defendant should have used an "ADA compliance bench" to search plaintiff rather than order plaintiff to lean forward in his wheelchair. PSDF 49-50. Plaintiff cites the
ECF No. 113-3 at 7 (Pl. Ex. A) (excerpts from Jan. 3, 2001
• Plaintiff testified that "prior to [defendant] even starting to search me I asked him to take me to B-1 or someplace where I can get out of this chair without him having to put his hands on me." Pl. Dep. at 33:18-21. Plaintiff stated that "[t]he protocol is you take me someplace where you can remove me out of this chair if you want to see what's behind this chair, and then you search it."
• At the medical clinic, plaintiff was given a shot for his back pain and given a "medical lay-in;" plaintiff testified that "it took me quite a while to get back to where my pain level was back to where it normally is very day."
• Prior to this incident, plaintiff's treatment for his chronic back pain, and for a recent left shoulder injury due to a fall, included prescriptions for methadone, gabapentin, baclofen muscle relaxers, physical therapy, and pain management.
• Plaintiff's medical records submitted after the hearing in this matter reflect that, on October 26, 2009 (the day after the incident), and again on October 28, 2009, plaintiff was prescribed an ice pack, on the latter date for a period of three days. ECF No. 117-1 at 1, 4. From October 31, 2009 until November 4, 2012, plaintiff declined his routine breathing treatments due to back pain.
• Plaintiff concedes that defendant "had a right to search my wheelchair, but he didn't have right to push and prod me to search it. . . . [H]e also had a duty . . . to take me someplace where he could search my wheelchair without injuring me as a disabled person."
• Defendant recalls plaintiff passing through the Gate on the way to the yard ("yard release"), and showing defendant his ID without incident. Df. Dep. at 52:10-53:1. 53:22-54:9; 55:5-18. Defendant did not know or recognize plaintiff. Df. Decl. ¶ 7.
• Later, at "yard recall," plaintiff again passed through the Gate in his wheelchair; this time defendant asked him to show his ID. Df. Dep. at 55:19-25; 58:3-15; Df. Decl. ¶ 7.
• Plaintiff refused to show his ID and stated "that he did not need to show [defendant] his Inmate ID every time he went through the Gate and that he was going to the B-1 medical clinic." Plaintiff "then continued to go through the Gate in his wheelchair, simultaneously cursing and bad mouthing [defendant]." Df. Decl. at ¶¶ 8-9; Df. Dep. at 58:3-15.
• Defendant asked plaintiff to stop and identify himself, and to show defendant his medical ducat. Plaintiff "again refused and stated in a loud and hostile voice that he did not have to show me his ducat because this was a medical issue and that I was `the fucking gate officer' so I should get my `ass back on the gate.'" Df. Decl. at ¶ 11; Df. Dep. at 60:16-9.
• Defendant gave plaintiff a direct order to move his wheelchair to the wall, but plaintiff refused.
• Defendant believed, based on his experience as a correctional officer, that "it is not uncommon for inmates in wheelchairs to carry contraband, such as drugs or weapons, in their wheelchairs. Wheelchairs allow inmates to conceal contraband from correctional staff, especially when moving from one secure area to another at the prison." Df. Decl. at ¶ 13.
• Defendant suspected that plaintiff may be carrying contraband because he "was attempting to get through the Unit I Grill Gate very quickly and without stopping for the security check."
• When plaintiff became hostile, defendant suspected that plaintiff may be carrying a weapon that would pose an immediate danger to himself or to other inmates at the Gate.
• Before searching plaintiff, defendant secured the grill gate "to protect myself and the inmate," so that it "would be one on one with the inmate, and there wouldn't be any other traffic or mass movement behind me or in front me." Df. Dep. at 58:18-24; 59:2-6.
• Defendant told plaintiff that he needed to search him and placed his hand on plaintiff's back "to initiate and inform him that I'm beginning to search his back area." Df. Dep. at 66:1-2. Defendant states that he "gently placed [his] hand on Barker's back and told him that he needed to bend forward. Barker leaned forward slightly and then refused to move any further. Instead, Barker continued to be hostile and aggressive." Df. Decl. at ¶ 16; Df. Dep. at 62:7-8, 65:18-22.
• Defendant was able "to search [plaintiff's] shoulder and top area, but I wasn't able to search the bottom area because [plaintiff] wasn't bending forward far enough." Df. Dep. at 66:5-7. Defendant "instructed [plaintiff] that he needed to bend completely forward, that way I can provide a thorough search, and he was refusing and being resistive, and at that time that's when I activated my alarm." Df. Dep. at 65:18-22; 66:17-8; 68:10-7 ("he kind of went back into his upright position; that's being resistive[;] [a]nd disobeying a direct order is being resistive as well"). Defendant was not touching plaintiff when he activated his alarm.
• Defendant "hit the alarm in order to have additional correctional staff assist me with the situation and the potential safety threat that Barker was posing." Df. Decl. at ¶17.
• After the supervisor cleared the alarm, defendant told plaintiff that he was going to write an RVR concerning plaintiff disobeying a direct order, and plaintiff was escorted to the B-1 medical clinic.
• When plaintiff returned from the medical clinic, he asked defendant to refrain from writing an RVR. When defendant declined, plaintiff alleged for the first time that he was injured in the incident and had heard a loud "pop" when he was required to lean forward in the wheelchair.
• Defendant testified that there was no ADA compliant bench in his "area of responsibility" at the Gate, and so he did not offer to use a bench to search plaintiff. Defendant explained that "[i]f I would have taken him to the nearest bench I would have violated my procedures of leaving the gate unsecured (sic), so no." Df. Dep. at 62:19-24.
Defendant has submitted the declaration of D. Tristan, former CDCR Deputy Director and Chief Deputy Director for CDCR's Institutions, Health Care and Parole Division.
Mr. Tristan states and opines in pertinent part that:
• Correctional officers at prison checkpoints are required to properly identify inmates trying to gain access to the prison's medical clinic. An inmate with an appointment at a clinic is provided with a ducat, or appointment slip, that does not contain any medical information but simply informs the officer that the inmate named in the ducat has an appointment.
• Medical clinics are particularly susceptible to breaches of security by inmates gaining unauthorized access.
• On October 25, 2009, defendant Yassine's security duties at the Unit I Gate included preventing inmates from gaining unauthorized access to the prison Medical Clinic.
• Based on the circumstances that day as described by defendant, including plaintiff's refusal to identify himself, and plaintiff's loud, obscene and defiant behavior, defendant had reasonable cause to believe that plaintiff had concealed contraband.
• A clothed pat-down search is not defined as use-of force.
• Defendant used "good correctional judgment in sounding his alarm instead of using force to remove Barker from the area."
Plaintiff relies on
Unlike a motion to dismiss, wherein the court accepts as true the allegations of the complaint,
Application of these principles requires that this court rely only on admissible evidence in assessing the merits of defendant's motion.
Defendant is not entitled to summary judgment if the evidence, viewed in the light most favorable to plaintiff, could support a finding that defendant used more force than necessary in executing his attempted search of plaintiff, causing injury to plaintiff, and that defendant did so with malicious intent to cause plaintiff harm.
The parties do not dispute that defendant had the authority to initiate the subject search of plaintiff. Notwithstanding plaintiff's repeated contention that defendant should have moved plaintiff to an ADA compliant bench to search both plaintiff and his wheelchair, plaintiff has presented no evidence to refute defendant's deposition testimony that there was no ADA compliant bench in defendant's area of responsibility, and that plaintiff would have been derelict in his duties to leave the Gate area. Df. Dep. at 62:19-24. Moreover, according to defendant's undisputed expert report, a routine clothed pat-down search may be performed on an inmate in a wheelchair. Tristan Decl. at ¶ 28-30, 42. In any case, violations of CDCR policies, the ADA, and/or the Armstrong consent decree do not necessarily violate the Eighth Amendment.
Nor is there any reasonable dispute that plaintiff's behavior justified the search. Notwithstanding the parties' dispute whether plaintiff showed defendant his ID, plaintiff concedes that he refused, at least initially, defendant's order to show his medical ducat, in violation of a direct order and thus in contravention of 15 C.C.R. § 3005(b), and that plaintiff spoke defiantly to defendant. Defendant was then the only correctional officer responsible for 100 to 150 inmates passing through the Gate, and it was his responsibility to maintain control and accountability of each inmate. Tristan Decl. at ¶¶ 7, 13-6, 19. Moreover, the Gate, as a security checkpoint between the yard and the medical clinic, was particularly susceptible to breaches of security, particularly the movement of contraband,
This evidence supports a finding that defendant commenced the challenged search in a "good-faith effort to maintain or restore discipline,"
The evidence of what happened next, viewed in the light most favorable to plaintiff, supports a finding that defendant, shortly after commencing the search and upset in response to plaintiff's failure to bend further forward, pushed or shoved plaintiff's middle back, making it "pop" and causing plaintiff pain. Plaintiff appears to allege that defendant pushed plaintiff's middle back in a single movement, but with increasing force, and despite plaintiff's complaints of pain and requests that defendant stop.
On summary judgment, the court must determine whether these facts also support a reasonable inference that defendant's alleged use of force was undertaken "maliciously and sadistically for the very purpose of causing harm."
The nature and extent of plaintiff's injury, while not dispositive, must be considered in determining whether the evidence supports a reasonable inference that defendant's alleged use of force was motivated by malicious or sadistic intent.
This evidence, together with plaintiff's testimony, supports a reasonable inference that the challenged incident caused plaintiff increased pain for a period of no more than two weeks, without any diagnosed or observable injury. These consequences of defendant's challenged conduct do not support a reasonable inference that the amount of force used by defendant was repugnant to the conscience.
Also significant is the undisputed evidence that defendant's alleged use of force was brief. Although defendant testified that he could not recall "the amount of seconds or time," Df. Dep. at 61:2-3, the entire incident transpired within approximately fifteen minutes, from the time plaintiff entered the Gate until he was escorted to the medical clinic. Defendant stopped the search of his own accord — whether because he heard plaintiff's back "pop" or because he realized he was causing plaintiff pain or realized the futility of the attempted search — and activated his alarm to quickly bring other officers to the scene and relinquish control to the sergeant. This conduct demonstrates defendant's efforts "to temper the severity of [his own alleged] forceful response,"
Finally, plaintiff has presented no evidence from which a juror could reasonably infer that defendant harbored malice against plaintiff. The circumstantial evidence of defendant's mental state supports no conclusion stronger than an inference that defendant was "upset" by plaintiff's failure to produce his medical ducat, and was concerned that plaintiff's behavior presented an imminent risk of harm to others or to the security of the institution. It is undisputed that the parties were unknown to each other prior to this incident. Moreover, it is not unreasonable for a correctional officer to attempt to proceed with an exigent search of an inmate despite the inmate's protests. In sum, the record evidence does not support a reasonable inference that defendant's challenged conduct was performed with a malicious or sadistic intent to cause plaintiff harm. Having carefully considered the factors identified in
For these reasons, and based on all the evidence submitted by the parties, this court finds that no reasonable juror could conclude that defendant acted with malicious and sadistic intent to cause plaintiff harm or, therefore, that defendant used excessive force against plaintiff in violation of the Eighth Amendment. There being no genuine issue of material fact requiring trial in this action, defendant's motion for summary judgment should be granted.
Where, as here, the facts do not support the alleged violation of a constitutional right, the court need not reach defendant's qualified immunity defense.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
• Obeying Orders: "Inmates and parolees must promptly and courteously obey written and verbal orders and instructions from department staff. . . ." 15 C.C.R. § 3005(b).
• Use of Force. "Reasonable Force: The force that an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order." 15 C.C.R. §3268(a)(1).
• Use of Force. "Excessive Force: The use of more force than is objectively reasonable to accomplish a lawful purpose." 15 C.C.R. §3268(a)(3).
• Use of Force. "Immediate Use of Force: The force used to respond without delay to a situation or circumstance that constitutes an imminent threat to security or the safety of persons." 15 C.C.R. §3268(a)(4).
• Use of Force. "Use of Force Options:. . . The unresisted searching or escorting of a person and the unresisted application of authorized restraint equipment is not a use of force." 15 C.C.R. §3268(c).
• Use of Force. "Reporting Requirements: Every staff use of force is an incident that shall be reported." 15 C.C.R. §3268.1(a).
In support of these allegations, plaintiff cites the following portions of the record:
