RICHARD F. BOULWARE, II, District Judge.
This case is before the Court on several motions for summary judgment. Plaintiff Charlie Cabrera asserts a claim for excessive force against Defendant Jessie Neville, a corrections officer employed by the Las Vegas Metropolitan Police Department. Cabrera's excessive force claim arises out of an incident that took place at Clark County Detention Center (CCDC) in which Officer Neville forcefully restrained Cabrera against a wall, allegedly injuring Cabrera's shoulders, back, and hip. Cabrera also asserts a deliberate indifference claim against Defendant NaphCare, Inc., the contracted health care provider at CCDC. Cabrera alleges that NaphCare denied him medical treatment for his injuries without having a doctor examine him. For the reasons given below, the Court grants summary judgment in favor of Defendants on all of Cabrera's claims.
Cabrera initially filed his civil rights complaint on May 31, 2012, in which he alleged several causes of action pursuant to 42 U.S.C. § 1983 against Defendants CCDC, Officer Neville, and various Doe defendants. ECF No. 1. The Complaint was subsequently screened by the Court, and Cabrera filed an Amended Complaint on February 9, 2013. ECF Nos. 5, 10.
After various orders from the Court addressing the legal sufficiency of the Amended Complaint, the counts remaining in Cabrera's Amended Complaint are as follows: (1) Fourteenth Amendment excessive force claim against Neville; (2) Eighth Amendment excessive force claim against Neville; and (3) Eighth Amendment deliberate indifference to medical needs claim against NaphCare.
There are now four separate Motions for Summary Judgment pending before the Court. Cabrera has filed two Motions for Summary Judgment, the first against both Defendants on September 24, 2014 and the second against NaphCare on March 23, 2015. ECF Nos. 72, 120. Neville filed an Amended Motion for Summary Judgment, pursuant to the Court's instructions, on October 7, 2014. ECF No. 80. NaphCare filed a Motion for Summary Judgment on March 6, 2015. ECF No. 118.
The Court held oral argument on the motions for summary judgment on January 14, 2016. At the hearing, for the reasons stated on the record, the Court ruled that it would consider Cabrera's motions for summary judgment and response briefs despite the fact that Cabrera had filed several of these documents past the applicable deadlines. On March 30, 2016, the Court denied both of Cabrera's motions, granted Neville's motion in part and denied it in part, and granted NaphCare's motion. Minute Order, ECF No. 159. The Court stated that it would issue a written order. This Order sets forth the Court's reasoning for its rulings. In addition, the Court finds good cause to reconsider its ruling and grant Neville's motion for summary judgment in its entirety.
After reviewing the evidence submitted by the parties, the Court finds the following undisputed facts.
Cabrera was adjudicated guilty of two charges in Nevada state court on August 17, 2011 and was sentenced on the same day. The judgment of conviction for this adjudication and sentence was entered on September 14, 2011. From the date he was sentenced on August 17, 2011 until September 20, 2011, Cabrera was incarcerated in Clark County Detention Center (CCDC).
On September 5, 2011, Cabrera was housed in Module 4P at CCDC. Officer Neville was also assigned to Module 4P on that day. On September 5, 2011, Neville instructed the 4P inmates to sit at a group of tables while he delivered a lecture on the need for them to follow CCDC behavioral rules. Neville was the only officer present in the room and there were at least forty inmates seated at the tables. While Neville was addressing the inmates, Cabrera interrupted him and either asked or told Neville to stop treating the inmates like children. Cabrera said this loud enough for Neville and the other inmates to clearly hear him. Neville then left the front of the room and walked through the middle of the group of tables. Initially, he walked past Cabrera; however, Cabrera then raised his hand and indicated that he was the one who had made the comment or question.
Neville then began to approach Cabrera. As Neville approached, Cabrera stood up from his chair and partially turned around so that when Neville did approach, he was facing Cabrera's right side. Cabrera did not turn to completely face Neville, nor did he attempt to make contact with Neville. The timing and the manner with which Cabrera stood to partially face Neville could reasonably be viewed as physically provocative. When Neville reached Cabrera, he grabbed Cabrera by his shirt collar and forcefully took him to the wall approximately four to five feet away. Neville was walking at a normal pace as he approached Cabrera, and continued to walk at that same pace as he took Cabrera to the wall. Neville kept his hands on Cabrera as he brought Cabrera to the wall. Neville did not push or shove Cabrera. Neville then held Cabrera against the wall for approximately thirty seconds, after which he released Cabrera. Cabrera then walked back to the table where he had been sitting and picked up his chair. Cabrera and Neville continued to speak face-to-face for about twenty more seconds, at which point Cabrera sat down with no apparent difficulty or discomfort or any other indication of pain or injury. Neville continued to stand over him and speak to him for another forty seconds. Neville then walked back to the front of the room, and Cabrera sat through the remainder of the meeting.
At all times relevant to this case during which Cabrera was detained at CCDC, NaphCare was the contracted provider of medical services at CCDC. Cabrera did not report any injuries from the incident between September 5, 2011 (the date the alleged incident occurred) and September 8, 2011. On September 8, 2011, Cabrera submitted a grievance to the Las Vegas Metropolitan Police Department ("Metro") complaining of lower back and shoulder pain from the September 5 incident. Cabrera was seen on the same day by Nurse Deramos, who was employed by NaphCare. The nurse noted the following: "No brusing [sic], redness, swelling noted. Skin is intact. No breakdown. Late entry."
On September 17, 2011, Cabrera submitted a medical kite stating that his lower back and shoulder pain was continuing. This kite was referred to the sick call doctor and was responded to the next day, on September 18, 2011. The responding staffperson instructed Cabrera to purchase Tylenol and Motrin from the commissary.
On September 19, 2011, Cabrera submitted another medical kite stating that he was still experiencing pain and that this was the third time he had requested to be seen by a doctor. The September 19 kite was also referred to the sick call doctor and responded to the next day, on September 20, 2011. However, the response contains only the letters "NIC," indicating that Cabrera was no longer in custody at CCDC.
The remainder of the material facts to this incident are disputed.
In his affidavit, Neville states that Cabrera's initial comment in front of the whole group was to tell Neville to "stop treating us like kids" in a sarcastic and challenging tone. Neville immediately became concerned that this comment would encourage the other inmates to be insubordinate and that he would lose control of the group. Neville asserts that after he walked to the back of the room, Cabrera loudly announced "I fucking said it" and quickly stood up. Neville then quickly approached Cabrera, grabbed his shirt collar, and secured him against the wall. Neville states that while Cabrera was against the wall, Neville did not hit, kick, or do anything to Cabrera other than hold him against the wall and control his movement. Cabrera then calmed down, at which point Neville released him and walked him back to the table. Neville later explained that Cabrera could have been written up for discipline, and Cabrera apologized.
Cabrera's affidavit presents a different version of events. Cabrera states that while Neville was addressing the group, Cabrera asked "why are you treating us like children?" Neville then immediately moved into the group of inmates and started screaming at the inmate behind Cabrera. Cabrera then asked Neville why he was yelling at that inmate when the inmate hadn't said anything, and told Neville that he had asked the question. Next, Cabrera avers that Neville grabbed him and slammed him against the concrete wall, which contained a ledge. Cabrera states that Neville held his arm against Cabrera's neck and held his body against Cabrera, pinning Cabrera to the wall. After Cabrera returned to his seat, Neville loudly told the group of inmates that that is what happens when someone challenges his authority. In their private conversation after the group meeting, Cabrera states that Neville told him that Neville could have done worse and that if Cabrera filed a report, he would be sorry.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "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);
Where the party seeking summary judgment does not have the ultimate burden of persuasion at trial, it "has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment."
Based upon its review of the parties' briefs and the evidence in the record, the Court concludes that summary judgment must be granted in favor of Defendants on all claims.
In Count I, Cabrera asserts a claim for excessive force against Officer Neville under the Fourteenth Amendment. The Court finds that Cabrera was a convicted prisoner at the time of the incident with Officer Neville, and therefore the Eighth Amendment, not the Fourteenth, applies to his excessive force claim. Consequently, summary judgment is granted in favor of Defendants on Count I.
Excessive force claims brought under 42 U.S.C. § 1983 are not "governed by a single generic standard."
The Eighth Amendment is the "primary source of substantive protection to convicted prisoners" in excessive force cases.
Where, by contrast, an individual has not been convicted but is detained pending trial, constitutional protection against excessive force is provided by the Due Process Clause of the Fourteenth Amendment.
Here, Cabrera was convicted and sentenced on August 17, 2011—ebefore the incident at CCDC with Officer Neville. The Court therefore finds that there was a formal adjudication of guilt prior to the incident that gave rise to Cabrera's excessive force claim. The excessive force standard under the Fourteenth Amendment is inapplicable to convicted and imprisoned persons, "who may be subject to punishment so long as it does not violate the Eighth Amendment's bar against cruel and unusual punishment."
The record shows that the judgment of conviction was not entered until after the incident with Neville. However, the Court finds that under the circumstances of this case it is the dates of conviction and sentence themselves, rather than the date of entry of the judgment of conviction, that matter for purposes of determining whether there has been a formal adjudication of guilt. This finding is consistent with Ninth Circuit precedent stating that the application of the Eighth versus Fourteenth Amendment depends on whether an individual has been "convicted."
Therefore, because the Fourteenth Amendment is not applicable to Cabrera's excessive force claim, summary judgment is granted in favor of Neville on Count I.
Count II is an excessive force claim against Officer Neville brought under the Eighth Amendment. In their motions, Cabrera and Neville each argue that summary judgment should be granted in their favor on this claim. The Court finds that the force used by Neville against Cabrera did not violate the Eighth Amendment, and therefore grants summary judgment in Neville's favor. Moreover, even if the Court were to find an Eighth Amendment violation, Neville would be entitled to qualified immunity on this claim.
The Eighth Amendment forbids cruel and unusual punishment. In an excessive force case, prison officials violate the Eighth Amendment if they cause "the unnecessary and wanton infliction of pain."
After reviewing the record, the Court finds no evidence from which a reasonable factfinder could conclude that the force used by Neville was unconstitutionally excessive. Although Cabrera claims that he was slammed against the wall and pinned there with Neville's forearm against his neck, this assertion is contradicted by the video evidence, Cabrera's conduct after the incident, and Cabrera's reported injuries. Therefore, summary judgment must be granted in Neville's favor.
The evidence supports summary judgment for two reasons. First, the video evidence
Second, the Court considers the context in which the interaction took place. Here, Neville was the only officer addressing a group of at least forty inmates. Like any corrections officer in that position, Neville was necessarily concerned with and responsible for maintaining discipline. Maintaining order became even more of a concern after Cabrera interrupted Neville and stood to face him. These facts are corroborated by the video evidence, which shows Neville walking to the back of the room, followed by Cabrera raising his hand, standing up, and turning to partially face Neville as Neville approached him. These actions could reasonably be perceived—and, according to Neville, were in fact perceived—as a physical challenge to Neville's authority and, if left unchecked, a threat to his safety and the safety of other inmates. Therefore, there was a need for Neville to take certain actions to maintain or restore discipline. Moreover, the evidence shows that the force used by Neville was proportionate to the need for that force. As discussed above, Neville grabbed Cabrera and restrained him against the wall, but did not slam him. Neville also did not push Cabrera beyond what was necessary to take him to the wall.
Therefore, the Court concludes based upon the undisputed evidence that Neville used reasonable force in a good-faith effort to maintain discipline. Although Cabrera disputes the level of force used against him, the Court finds this to be insufficient to create a genuine issue of material fact. Viewing the record as a whole—including the video evidence, Neville's affidavit, and Mr. Cabrera's behavior and requests after the incident—no reasonable jury could find that Neville used force maliciously or sadistically to cause harm. Therefore, summary judgment is granted in favor of Neville on Count II.
Even if the Court did not grant summary judgment based upon the undisputed evidence, Neville would be entitled to qualified immunity on Cabrera's Eighth Amendment claim.
"Qualified immunity protects government officials from civil damages `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"
In deciding a claim of qualified immunity where a genuine issue of material fact exists, the court accepts the version asserted by the non-moving party.
In this case, even if Neville had used excessive force (thereby enabling Cabrera to satisfy the first prong), Neville would be entitled to qualified immunity. It was not clearly established at the time of the incident that a convicted inmate had the right to be free from forceful restraint against a wall after physically confronting an officer. It is certainly true that Cabrera had a right to be free from excessive force, specifically under the Eighth Amendment as an inmate, and that "the unnecessary and wanton infliction of pain" violates the Eighth Amendment.
Even if Cabrera had been slammed more forcefully against the wall as he claims, the Court would still find that qualified immunity applied. This is because the degree of force alleged, given the medical evidence indicating a lack of significant injury or bruising, would still not rise to the level where it would be excessive pursuant to established Eighth Amendment jurisprudence.
In Count III, Cabrera alleges that NaphCare was deliberately indifferent to his medical needs after the incident with Officer Neville. Based upon its review of the record, the Court concludes that summary judgment must be granted in NaphCare's favor on Count III.
To establish an Eighth Amendment claim against prison officials for medical treatment, an incarcerated plaintiff must show deliberate indifference to his serious medical needs.
The Ninth Circuit has established a two-part test for deliberate indifference. First, the plaintiff must establish a serious medical need, meaning that "failure to treat [the condition] could result in further significant injury or the unnecessary and wanton infliction of pain."
Second, the plaintiff must demonstrate the defendant's deliberate indifference to the need.
Here, even assuming that Cabrera has established a serious medical need, he has not produced any evidence from which a reasonable factfinder could conclude that NaphCare was deliberately indifferent to that need.
First, Cabrera has not shown that any policy, custom, or practice by NaphCare violated his Eighth Amendment rights. Cabrera's claim against NaphCare is a municipal liability claim under 42 U.S.C. § 1983. A municipality (or an entity acting on behalf of a municipality) cannot be held liable under Section 1983 for the acts of its employees under a respondeat superior theory.
Here, Cabrera has provided no evidence that NaphCare had an official policy or custom that caused him injury, nor has he shown that NaphCare failed to train its employees in a manner reflecting a deliberate choice or that a NaphCare staff member with final policymaking authority refused him care or ratified a subordinate's decision to refuse him care. Cabrera points to the fact that NaphCare has a policy requiring an examination within 24 hours of all inmates who undergo a use of force, and argues that this was not done in his case. However, the failed implementation of a policy is not enough to establish liability on behalf of the entity that established the policy.
Second, even assuming that Cabrera is attempting to assert his claim against unnamed NaphCare staff members, he has not produced any evidence that these staff members were deliberately indifferent to his medical needs. The undisputed facts show that each time NaphCare received a grievance from Cabrera, a NaphCare staff member responded in a way intended to address his needs. When Cabrera submitted a grievance on September 8, 2011 regarding back and shoulder pain, he was examined by a nurse that same day. The nurse found no external signs of injury. The record shows that NaphCare did not receive another grievance from Cabrera until September 17, 2011, and that they responded the next day directing him to purchase medication from the commissary. Even if this could be construed as a violation of NaphCare's policy (which states that inmates with non-urgent sick call requests must be "seen" the next business day), this is at best evidence of negligence, which is not enough to establish a deliberate indifference claim.
While Cabrera may disagree with the treatment decisions of the NaphCare staff, this is not enough to establish deliberate indifference.
For the reasons discussed above,
The Clerk of Court is instructed to enter judgment in favor of Defendants and close this case.
