FREDERICK F. MUMM, Magistrate Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire record in this action, the attached Final Report and Recommendation of United States Magistrate Judge ("Report"), and the objections thereto. Good cause appearing, the Court concurs with and accepts the findings of fact, conclusions oflaw, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.
IT IS ORDERED that(1) plaintiff's excessive force claims based on Reynold's and Courtial's unannounced entry into plaintiff's home and seizure of plaintiff at gunpoint are dismissed with prejudice; and (2) plaintiff's medical care claims are dismissed without prejudice.
This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
Plaintiff Victor Shawn Brown, a California state prisoner who proceeds pro se, filed the complaint in this action (the "Complaint") on February 3, 2017. (Docket No. 1.) Plaintiff's operative pleading is the second amended complaint ("SAC"), filed on September 21, 2017. (Docket No. 56.) On June 20, 2018, defendants Michael Reynolds, Michael Courtial, Veronica Young, and Kevin Turrill filed a motion for summary judgment (the "Motion"). (Docket No. 98; see also Docket Nos. 99-101.) Plaintiff filed opposing papers on July 25, 2018. (Docket Nos. 111-14.) Defendants filed a reply (the "Reply") on August 2, 2018. (Docket No. 116.)
The matter thus stands submitted. For the reasons that follow, the Court recommends that the Motion be granted in part.
On January 28, 2015, plaintiff made a phone call to 911. Plaintiff sought assistance because he believed there were people outside his home trying to kill him. (SAC, ¶ 1.) Plaintiff's overnight guest, Angela Johnson,
Upon Simmons's arrival, Simmons and Angela both tried to calm plaintiff down. (¶ 4.) As plaintiff's cell phone battery had died, plaintiff used Simmons's cell phone to call 911. (Id.) Plaintiff gave his name to the 911 operator, but plaintiff could not remember his address because of his state of mind. (Id.) Plaintiff gave the phone to Angela, and Angela gave the operator plaintiff's address. (Id.) Shortly thereafter, plaintiff's 911 call was disconnected. Plaintiff called back. The call was disconnected a second time and plaintiff called back again. (¶ 6.)
While plaintiff was on the phone with the 911 operator, Angela suggested that she and plaintiff sit by the door. (¶ 7.) The 911 operator told plaintiff that she could not hear him, so plaintiff loudly inquired as to the whereabouts of the responding deputies. (¶ 8.) At this moment, Deputy Reynolds kicked open plaintiff's front door. (¶¶ 8-9.) Deputy Reynolds gave plaintiff commands at gunpoint. Plaintiff complied with the commands. (¶ 9.)
While plaintiff lay prone on the floor with his hands out and palms up, Deputy Reynolds began to beat him on the top of his head with the barrel of his gun. (¶ 10.) Reynolds then used the barrel of his gun to forcefully push the top of plaintiff's head, slamming plaintiff's head against the hard floor. Reynolds stated, "You feel that[,] fucker? [T]hat's the barrel of my gun[.] [I]f you lift your head off your floor again, I will blow your brains all over your floor." (¶ 10.)
Deputy Courtial intentionally handcuffed plaintiff as tightly as he could, using both thumbs to squeeze each cuff. (¶ 12.) Plaintiff remained tightly cuffed for the next three hours. (Id.)
Deputy Reynolds reached into the left front pocket of plaintiff's shorts and pulled out a "baggy" containing a very small amount of methamphetamine. (¶ 14.) Reynolds stated, "This is why he's acting like that." (Id.)
Plaintiff was escorted out of the house by an unknown deputy. (¶ 15.) The deputy dragged plaintiff across his rocky front yard, injuring plaintiff's feet. (¶ 16.) Plaintiff's injuries were evident, and plaintiff told the deputy that he needed his psychiatric medication. (¶ 17.) The deputy nonetheless took him to the Lancaster Sheriff's Station. (Id.) An unknown sergeant videotaped plaintiff in the station parking lot as plaintiff sat in the back of the patrol car. Plaintiff was hallucinating. (¶ 18.)
Plaintiff was placed in a holding cell, where he spent approximately a day and a half without psychiatric medication or medical treatment. (¶¶ 19, 21.) He was hallucinating and visibly injured. (Id.) While in the holding cell, he asked defendant Young if someone could go to his house and retrieve his medication, or if someone could take him to the Antelope Valley Hospital. (¶ 20.) Young said, "No." (Id.) Three other station employees, including defendant Turrill, refused plaintiff's requests for medical help and for his psychiatric medication. (Id.)
On the evening of January 27, 2015, plaintiff had an overnight visit from his girlfriend, Angela. (Docket No. 100 ("SSUF") 1.) Plaintiff stayed awake all night using drugs. Plaintiff became paranoid and began to hallucinate, seeing people and shadows that were not there. (Id.) When Angela woke up on January 28, plaintiff, still paranoid, tried to convince her there were people inside the house. (SSUF 2.) Plaintiff grabbed a kitchen knife with an 8-inch blade. He walked around the house with the knife in one hand and Angela's hand in the other, as Angela cried and yelled.
At approximately 6:39 a.m. on January 28, dispatch for the Lancaster Sheriff's Station received a call via the emergency 911 call system. (SSUF 5.) The call was recorded. (SSUF 6-8.) There were loud voices, including a woman's voice, arguing in the background. In the course of the call, the woman said, "Help me, please!" and, more than once, "Please, Sean, don't stab me!" (SSUF 6, 8.) Another person said, "Please don't shoot!"
Reynolds and Courtial were deputy sheriffs assigned to the Lancaster Sheriff's Station. Both were in patrol vehicles, working the a.m. shift. (SSUF 11, 42-43.) At approximately 6:38 a.m., dispatch put out a radio call requesting a "Code 3" response (i.e., with overhead lights and sirens activated) regarding a person with a gun at 44289 Elm Avenue ("the location"). (SSUF 9.) Dispatch digitally transmitted the following information to the patrol officers' mobile computers:
(SSUF 10.)
Deputy Reynolds understood the transmissions to mean that a person at the location said, "Please don't shoot"; a female adult said, "Please Sean, don't stab me"; and a person twice said "Sean, don't stab me," after which all parties went quiet. (SSUF 14.) Reynolds believed there was at least one person at the location who was armed with a gun and knife and threatening to shoot and/or stab another person. (SSUF 15.) Deputy Courtial understood that there was an emergency situation with a person's life in immanent danger. (SSUF 44.)
Deputy Reynolds arrived at the location at 6:55 a.m. He saw other units in front of the location and proceeded to the back alley. As he was the only unit in that area, he radioed for assistance. When assistance arrived, he entered the yard from the back alley. (SSUF 14, 16.) Deputy Courtial, having responded to the call for assistance, entered the yard after Deputy Reynolds. (SSUF 45.)
Reynolds and Courtial saw that the location's kitchen window had been broken. They believed there had been a forced entry into the residence. (SSUF 17, 46.) Deputy Courtial heard a woman screaming frantically, as if terrified. He believed the woman was screaming because her life was in danger. (SSUF 47.) Deputy Reynolds also heard a woman screaming frantically, and he heard an adult male yelling. (SSUF 18.) Reynolds believed there was an armed suspect about to take the life of another person inside the residence. (SSUF 19.) Reynolds drew his duty weapon and kicked open the door. (Id.; SSUF 48.)
Upon his entry, Deputy Reynolds observed plaintiff on the floor near the door. (SSUF 20.) Plaintiff had his arm around Angela. He was holding a kitchen blade with an 8-inch knife to Angela's throat. Angela was screaming in terror. (SSUF 21.) Reynolds believed plaintiff was going to kill Angela. (SSUF 22.) Reynolds pointed his duty weapon and ordered plaintiff to drop the knife. Plaintiff pulled Angela into Reynolds's line of fire. (SSUF 23.)
Deputy Courtial heard Deputy Reynolds order plaintiff to drop the knife. (SSUF 49.) Courtial entered the location. (SSUF 24, 50.) He saw plaintiff and Angela seated on the floor by the door. (SSUF 50.) Plaintiff was holding onto Angela, who was screaming hysterically. Plaintiff was armed with a kitchen knife with an 8-inch blade, which was pointed at Angela's throat. (SSUF 51-52.) Courtial yelled for Brown to drop the knife. (SSUF 53.)
Plaintiff tossed the knife aside. (SSUF 25, 53.) However, because dispatch had called deputies to respond to a "person with a gun," Deputy Reynolds believed that plaintiff might also be armed with a gun. (SSUF 25.) Accordingly, Reynolds continued to point his weapon at plaintiff. (SSUF 26.) At this point, Angela was escorted from the residence by another deputy. (See Reynolds Decl., ¶ 21; see also Docket No. 118 ("Johnson Decl."), ECF # 1724-25.)
Deputy Courtial declares that after plaintiff released the knife, Courtial pushed him onto the floor and turned him onto his stomach. Using his body weight to hold plaintiff down, Courtial handcuffed plaintiff without further incident. (Courtial Decl., ¶ 12.) Courtial declares that when he applies handcuffs, he always inserts his index finger between the suspect's wrist and the cuff's metal part to ensure the cuff is not too tight. (Id., ¶ 15.)
Deputy Reynolds declares he provided cover with his weapon until Deputy Courtial handcuffed plaintiff. (Reynolds Decl, ¶ 20.) According to the deputies, plaintiff was handcuffed in a matter of seconds after Reynolds's entrance. (Id., ¶ 23; Courtial Decl., ¶ 14.)
According to plaintiff, however, after Deputy Courtial forced him into a prone position, Deputy Reynolds began pistol-whipping plaintiff on the head. Reynolds stated, "You feel that[,] fucker? That's the barrel of my gun. If you lift your head off the floor again, I will blow your brains all over your floor." (Pltf. Decl., ¶ 43.) Reynolds then used the barrel of the gun to push the top of plaintiff's head, causing plaintiff's face to violently and painfully bang against the hard floor. (Id.) Plaintiff further declares that when Courtial cuffed him, he used both hands to squeeze each cuff around the wrist. (Pltf. Decl., ¶ 45.) Plaintiff declares that the tight cuffing caused permanent "disfigurement" to his wrists. (Id.)
Angela declares that after she was escorted from the house, she heard a noise that sounded like someone's head hitting the floor very hard. At about the same time, she heard plaintiff say "Ow, [m]an!" as if he were hurt. She then heard someone else inside the house say something like, "I'll kill you!" or "You move again[,] I'll kill you!" (Johnson Decl., ECF # 1725.) Angela could not see what was going on inside the house. (Id.) Subsequently, as a deputy walked her past the front door, she observed that plaintiff was on his stomach. She saw a deputy using both hands to squeeze a cuff around plaintiff's left wrist. Angela heard plaintiff exclaim in pain. (Id.)
Once plaintiff was handcuffed, Deputy Reynolds holstered his weapon. (SSUF 27.) Plaintiff was placed under arrest. (SSUF 29.) Plaintiff did not request medical attention while at the location. (SSUF 33.) Plaintiff was transported to the Lancaster Sheriff's Station by deputies other than Reynolds and Courtial. (SSUF 30.)
Plaintiff was charged with attempted murder (Penal Code §§ 664/187(a)), assault with a deadly weapon (Penal Code § 245(a)(1)), and false imprisonment by violence (Penal Code § 236). (SSUF 39.) Reynolds and Courtial testified for the prosecution at the trial. (SSUF 40; see SGI Ex. 7.) The jury found plaintiff guilty of assault with a deadly weapon and false imprisonment by violence. (Id.) Plaintiff was sentenced to sixteen years in prison. (SSUF 41.) The California Court of Appeal affirmed plaintiff's conviction. (Id.)
In January 2015, the LASD had an inmate complaint procedure that applied to all custody facilities. (SSUF 63.) The inmate complaint procedure is initiated when an inmate completes and submits a complaint to jail personnel. (SSUF 64.) The complaint may address issues such as medical care and mental health care. (Id.) In stations and jails, official inmate complaint forms are available to the inmates in marked receptacles inside each housing area. As well, inmates may obtain the forms on request. (Id.) Inmate complaints may also be written on any ordinary piece of paper. (Id.)
The written complaints may be deposited throughout the day in complaint boxes marked "Inmate Complaints," located in each inmate housing location. (SSUF 66.) They may also be given directly to any staff member. As well, the LASD accepts inmate complaints by mail. (Id.) Completed forms are delivered to the on-duty watch commander or the inmate complaint coordinator, to be entered into the C.A.R.T.S. system, (SSUF 67.) All written complaints are logged into the C.A.R.T.S. system, assigned a reference number, and assigned to an investigator. The reference number is written on the inmate complaint form. (SSUF 68.)
The assigned investigator contacts the inmate in an attempt to resolve the complaint. (SSUF 69.) If the inmate is not satisfied, or the complaint is denied, the inmate can appeal to a higher level of command to exhaust available administrative remedies within the LASD jail system. (SSUF 69.) The chain of appeal is: watch commander, then captain/unit commander. (SSUF 70.) All information regarding inmate complaint forms from all jail facilities is entered into the C.A.R.T.S. system. (SSUF 71.)
Plaintiff was housed in the Lancaster Sheriff's Station from January 28 to January 30, 2015. Subsequently, he was transferred to the Inmate Reception Center, then to the Twin Towers Correctional Facility and the Men's Central Jail. He was released to CDCR custody on March 23, 2016. (SSUF 72.) Plaintiff submitted six inmate complaints while he was in LASD custody. During that period, however, he did not submit any complaint against defendant Turrill or defendant Young. (SSUF 73.) Nor did he submit any complaint alleging that he was denied medical care or mental health attention at Lancaster Sheriff's Station. (SSUF 74.)
Plaintiff does not dispute that he did not submit any inmate complaints regarding Turrill, Young, medical care, or mental health attention through LASD's official inmate complaint procedure. (Docket No. 112 ("Oppo.") at 6, 15; see SGI at 13-14.) However, plaintiff asserts that there is a "code of retaliation" within the Men's Central Jail and throughout the LASD. (SGI at 13.) He asserts that he feared retaliation and therefore "filed his complaint in the safest way he knew" — i.e., in the form of a "public complaint." (Id.; see SGI Ex. 27 (LASD flyer describing public complaint process).)
Plaintiff presents evidence that in April 2016 and September 2016, while he was in CDCR custody, he mailed complaints of excessive force and inadequate medical care to LASD officials. (SGI Ex. 28.) Plaintiff's evidence purports to show that the LASD accepted his September 2016 complaint and assigned it a "service comment report" reference number in accordance with public complaint procedures. (Compare SGI Ex. 27 to SGI Ex. 28, ECF # 1667.)
When deciding a motion for summary judgment or summary adjudication, the Court must rule in favor of the movant "if the movant 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). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. See id. at 248. Inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L. Ed. 2d 538 (1986).
The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact and that summary judgment is proper as a matter of law. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). In cases where, as here, the nonmoving party will bear the burden of proof at trial on a dispositive issue, "a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324; Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105-06 (9th Cir. 2000) (reasoning that in Celotex, summary judgment was warranted because nonmoving party admitted in discovery that she had no witnesses to support allegations necessary to her claim). The moving party may also produce evidence negating an essential element of the nonmoving party's case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58, 90 S.Ct. 1598, 26 L. Ed. 2d 142 (1970); Nissan Fire, 210 F.3d at 1104-06.
If the moving party carries its initial burden, the nonmoving party must produce evidence to support its claim or defense. Nissan Fire, 210 F.3d at 1103. There is no genuine issue of fact if the nonmoving party "fails to make an adequate showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. There is also no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion. Matsushita, 475 U.S. at 586.
The Prisoner Litigation Reform Act ("PLRA") requires that inmates exhaust all available administrative remedies before filing "any suit challenging prison conditions," including, but not limited to, suits under Section 1983. Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L. Ed. 2d 368 (2006). Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L. Ed. 2d 958 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules," Woodford, 548 U.S. at 90. However, an inmate is required to exhaust only available remedies. Booth, 532 U.—S. at 736; Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). To be available, a remedy must be available "as a practical matter"; it must be "capable of use; at hand." Brown, 422 F.3d at 937.
"[F]ailure to exhaust is an affirmative defense under the PLRA," and prisoner plaintiffs are therefore not required to "specially plead or demonstrate" exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L. Ed. 2d 798 (2007). Thus, where failure to exhaust is not plain from the face of the complaint, a defendant seeking dismissal on exhaustion grounds must bring a motion for summary judgment under Federal Rule of Civil Procedure 56. Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir. 2014). In such a motion, the defendant's initial burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy. Albino, 747 F.3d at 1172. If the defendant carries that burden, the burden shifts to the prisoner to "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. However, the ultimate burden of proof remains with the defendant. Id.
Plaintiff contends that Reynolds and Courtial are liable for entering his home without announcing their presence. (Oppo. at 5, 13.) Reynolds and Courtial are entitled to summary judgment on this claim. While it is true that law enforcement officers' unannounced entry into a dwelling may be unreasonable under the Fourth Amendment, Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L. Ed. 2d 976 (1995), the so-called "knock-and-announce" principle does not apply where exigent circumstances exist, Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S.Ct. 1416, 137 L. Ed. 2d 615 (1997).
"In "order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards, 520 U.S. at 394. A reasonable and particularized fear that the suspect poses a danger to the officers and/or others may justify a "no-knock" entry. See United States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003) (SWAT team's no-knock entry justified where, inter alia, police reasonably believed that residence contained explosives and suspect "had claimed a readiness to `blow some shit up . . . at any time'"); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L. Ed. 2d 650 (2006) ("One exigency obviating the requirement of a warrant [to enter a home] is the need to assist persons who are seriously injured or threatened with such injury"). Notably, in determining the lawfulness of entry, the court "may concern [itself] only with what the officers had reason to believe at the time of their entry." United States v. Ramirez, 523 U.S. 65, 71 n.2, 118 S.Ct. 992, 997, 140 L. Ed. 2d 191 (1998) (emphasis in original).
The undisputed facts show that Reynolds and Courtial were dispatched to plaintiff's home on a "Code 3" basis regarding a person with a gun. Prior to their entry, dispatch informed Reynolds and Courtial (1) there was yelling and screaming in the background of the 911 call; (2) a person said, "Please don't shoot"; and (3) a woman said, "Please don't stab me." Based on this information alone, it was reasonable for Reynolds and Courtial to believe that a person inside the location was in imminent danger of mortal injury.
Plaintiff presents evidence purporting to show that Angela was never frightened or in danger. Inter alia, his evidence reflects that at his criminal trial, she minimized or denied some of her statements in the 911 recording. (See Oppo. at 2-5; see also Pltf.'s Decl., ¶¶ 39-40; see also SGI, Ex. 3.) As well, plaintiff contends that the 911 recording is incomplete and/or was doctored by the prosecution. (Pltf. Decl., ¶¶ 44, 55; Oppo. at 5.) These assertions are immaterial.
Further, Reynolds and Courtial present evidence that when they arrived at plaintiff's home, the kitchen window was broken, causing them to fear a break-in. In addition, they heard a woman screaming "frantically" or in terror. Plaintiff does not dispute the broken window evidence. He does dispute the evidence that Angela was screaming "frantically." (See Oppo. at 4-5; see also Pltf. Decl., ¶ 40.) This dispute is immaterial. In light of (1) the information received from dispatch; and (2) the apparent break-in, no reasonable juror would conclude that the absence of "frantic" screaming negated the apparent exigency.
Accordingly, Reynolds and Courtial are entitled to summary judgment on plaintiff's claims based on their unannounced entry into his home.
To the extent plaintiff contends his seizure at gunpoint violated the Fourth Amendment (see SAC ¶ 9), Reynolds and Courtial are entitled to summary judgment. The deputies declare that when they entered plaintiff's dwelling, they saw plaintiff holding a knife to Angela's throat. Further, Reynolds declares that after plaintiff tossed the knife aside, Reynolds feared that he still might have a gun.
Under the foregoing facts, Deputy Reynolds did not violate plaintiff's Fourth Amendment rights by drawing his gun on plaintiff and providing cover until plaintiff was handcuffed. Plaintiff was armed and posed an apparent threat to Angela and a potential threat to the officers. In addition, after plaintiff dropped the knife, it was reasonable for Reynolds to fear that plaintiff might have a gun, given the information by dispatch. Compare to Robinson v. Solano Cty., 278 F.3d 1007, 1014 (9th Cir. 2002) (seizure at gunpoint violated Fourth Amendment where "[t]he crime under investigation was at most a misdemeanor[,] the suspect was apparently unarmed and approaching the officers in a peaceful way[,][t]here were no dangerous or exigent circumstances apparent at the time of the detention, and the officers outnumbered the plaintiff"); Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir. 2009) (officer who pointed gun at plaintiff until plaintiff was handcuffed not entitled to summary judgment where plaintiff was unarmed and nonthreatening, officers entered home because they suspected he was having medical emergency, and any putative crime was misdemeanor). Reynolds and Courtial have thus met their initial burden on summary judgment.
In his opposition, plaintiff claims he never held a knife to Angela's throat and never threatened her or anyone else. (Oppo. at 13; Pltf. Decl., ¶ 40.) He contends that Reynolds and Courtial lied in his criminal trial when they testified to the contrary, and he presents evidence that Angela denied being held at knifepoint. (Oppo. at 14; see SGI Exs. 3, 7, 10, 20.) Plaintiff posits that in reality, when Reynolds and Courtial entered his home, they realized "a mistake had been made because plaintiff did not have a knife to [Angela's] throat . . . ." (Oppo. at 13.) Reynolds and Courtial became angry, plaintiff contends, and "took actions against [him]." (Id. at 13.) Those actions included (inter alia) planting drugs on him and engineering his wrongful arrest. (See id. at 13-15.)
Plaintiff may not raise a triable issue of fact by means of such evidence. Nor may he base his Section 1983 claims on the theory that his arrest was a "mistake." A plaintiff cannot pursue claims under Section 1983 if they are "based on theories that `necessarily imply the invalidity of his conviction[s] or sentence[s].'" Cunningham v. Gates, 312 F.3d 1148, 1153 (9th Cir. 2002), as amended on denial of reh'g (Jan. 14, 2003) (alterations in original; quoting Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L. Ed. 2d 383 (1994)). In evaluating whether Heck bars a claim, "an important touchstone is whether a § 1983 plaintiff could prevail only by negating `an element of the offense of which he has been convicted.'" Cunningham, 312 F.3d at 1154 (quoting Heck, 512 U.S. at 487 n.6).
Here, as plaintiff's convictions for assault with a deadly weapon and false imprisonment by violence still stand, he cannot pursue the theory that Reynolds and Courtial are lying about seeing him with a knife to Angela's throat.
As well, plaintiff may not raise a triable issue of fact by proffering evidence that the state obtained his convictions by knowingly using perjured testimony or fabricated evidence. Success on such theories would necessarily imply the invalidity of his convictions. Heck, supra; see also United States v. Bagley, 473 U.S. 667, 680 n. 9, 105 S.Ct. 3375, 87 L. Ed. 2d 481 (1985) ("[A] conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict"); Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L. Ed. 2d 1217 (1959) ("[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment").
In addition, plaintiff cannot raise a triable issue of fact by proffering evidence that his arrest was a "mistake," whether because the drugs were planted or because he never threatened Angela with a knife. A plaintiff cannot bring a false arrest claim where the conduct forming the basis for arrest resulted in a conviction that has not been invalidated. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). Moreover, "an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking." D.C. v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 585 n.2, 199 L. Ed. 2d 453 (2018). As holding Angela at knifepoint provided probable cause for arrest, plaintiff's challenge to his arrest is Heck-barred, no matter the grounds cited for the arrest. Moreover, as plaintiff was never charged for the drug possession, he cannot demonstrate that he was harmed by the alleged planting of evidence.
In sum, plaintiff has not met his burden of demonstrating a genuine issue of material fact. Accordingly, Reynolds and Courtial are entitled to summary judgment on this claim.
Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L. Ed. 2d 443 (1989); LaLonde v. Cty. of Riverside, 204 F.3d 947, 959 (9th Cir. 2000). "Determining whether force used in making an arrest is excessive or reasonable `requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" LaLonde, supra (quoting Graham, 490 U.S. at 396). The Ninth Circuit has held that the use of significant force "may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of [such force] . . . constitutes excessive force."). LaLonde, 204 F.3d at 961.
Here, the parties do not dispute that after plaintiff tossed the knife aside, Deputy Courtial subdued him by forcing him into a prone position. They dispute what happened next. Reynolds and Courtial declare that plaintiff was handcuffed without incident. Plaintiff declares Reynolds pistol-whipped him, slammed his head into the ground, pressed the barrel of the gun into his skull, and threatened to "blow [his] brains out." As well, plaintiff presents Angela's declaration, which corroborates his account to some degree.
Drawing all inferences in plaintiff's favor, plaintiff's showing is sufficient to raise a triable issue of fact regarding whether Reynolds's use of force was excessive. While it is true plaintiff was suspected of a violent felony, plaintiff had not attacked the deputies, he had complied with the order to put the knife aside, he was outnumbered, and he had been rendered prone and helpless by Courtial. Thus, a reasonable jury could find that even if Reynolds believed plaintiff might still be armed, striking plaintiff with his weapon and slamming plaintiff's head into the ground was unreasonable under the circumstances.
Plaintiff also raises a triable issue of fact regarding the alleged tight handcuffing. Where handcuffing is tight enough to cause pain and lasting injury, and where no justification for the tightness is present, the Fourth Amendment is violated. Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); see Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989). "The issue of tight handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses." LaLonde, 204 F.3d at 960 (finding trial court erred in granting directed verdict in officers' favor on plaintiff's tight handcuffing claim). Here, Deputy Courtial claims he cuffed plaintiff securely but not tightly, whereas plaintiff claims Courtial cuffed him so tightly as to cause permanent damage. Resolving this dispute is manifestly a jury's task.
Finally, defendants are not entitled to qualified immunity. The doctrine of qualified immunity shields officials from civil liability so long as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L. Ed. 2d 255 (2015); Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L. Ed. 2d 565 (2009). The relevant inquiry involves two questions: (1) whether the facts, taken in the light most favorable to the non-moving party, show that the officials' conduct violated a constitutional right, and (2) whether the law at the time of the challenged conduct clearly established that the conduct was unlawful. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L. Ed. 2d 565 (2009); Felarca v. Birgeneau, 891 F.3d 809, 815-16 (9th Cir. 2018).
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L. Ed. 2d 985 (2012) (internal quotation marks and alteration omitted). "`We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Mullenix, 136 S. Ct. at 308 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L. Ed. 2d 1149 (2011)).
By 2015, it was clearly established that the use of significant force, such as weapon strikes to the head, on an outnumbered, helpless, and compliant suspect violates the Fourth Amendment. See LaLonde, 204 F.3d at 961; Blankenhorn, 485 F.3d at 480; Young, 655 F.3d at 1164. Similarly, it was clearly established that handcuffing a suspect tightly enough to cause permanent injury, and without justification, violates the Fourth Amendment. See Palmer, 9 F.3d at 1436 (on summary judgment motion, denying defendant officers qualified immunity where plaintiff claimed officer fastened cuffs so tightly they caused pain and left bruises lasting for several weeks); see also LaLonde, 204 F.3d at 960 (noting that "a series of Ninth Circuit cases has held that tight handcuffing can constitute excessive force"). Therefore, Reynolds and Courtial are not entitled to qualified immunity.
Defendants present evidence that (1) during the relevant period, the LASD had an inmate grievance system in which properly-submitted complaints were registered, tracked, and addressed through multiple levels of review; and (2) plaintiff did not submit a grievance regarding his medical care claims through that system. Accordingly, defendants have met their initial burden on summary judgment of showing that (1) there was an available administrative remedy; and (2) plaintiff did not exhaust that remedy. See Albino, 747 F.3d at 1172.
Plaintiff does not dispute the existence of the remedy, and he concedes he did not submit an inmate complaint regarding his medical care claims. Instead, he proffers evidence that after he was transferred to CDCR custody, he submitted "public complaints" to the LASD. As defendants argue (Reply at 6-7), plaintiff's public complaints cannot demonstrate exhaustion. "[P]roper exhaustion of administrative remedies . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Ngo, 548 U.S. at 90 (internal quotation marks omitted; emphasis in original). Thus, for exhaustion purposes, an inmate (or former inmate) may not substitute a public complaint procedure for an inmate grievance procedure. See, e.g., Rios v. Paramo, 2016 WL 8731085, at *10 (S.D. Cal. July 15, 2016), report and recommendation adopted, 2016 WL 4709063 (S.D. Cal. Sept. 9, 2016) ("[B]ecause the California Department of Corrections and Rehabilitation has established an administrative grievance system, a prisoner may not use a citizen's complaint to exhaust administrative remedies when it is not part of that prescribed grievance process").
As plaintiff has not raised a triable issue of fact regarding his exhaustion of the remedy, he must raise a triable issue of fact regarding the remedy's availability. In that regard, an administrative remedy may become unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 136 S.Ct. 1850, 1860, 195 L. Ed. 2d 117 (2016). Thus, "the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner's failure to exhaust administrative remedies." McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015).
Here, plaintiff asserts that a "code of retaliation" within the LASD dissuaded him from exhausting his medical care claims via the inmate grievance procedure. However, plaintiff provides no details regarding either the alleged code's existence or his fear of retaliation. Moreover, plaintiff does not dispute defendants' evidence that while in LASD custody, he submitted six inmate grievances regarding other matters. Plaintiff's abundant use of the inmate grievance procedure is inconsistent with his claim that a "code of retaliation" rendered the procedure unavailable. Plaintiff does not address this inconsistency (see generally Oppo.), and his unadorned allegations provide no evidentiary basis from which a reasonable jury could find unavailability.
In sum, plaintiff has failed to raise a triable issue of fact regarding his failure to exhaust his medical care claims via the existing and available inmate grievance procedure. Accordingly, defendants are entitled to summary judgment on those claims.
For the foregoing reasons, the Court recommends that an order be issued (1) approving and accepting this Report and Recommendation; and (2) granting the Motion in part as follows:
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.
