Lee v. Fuga ( 2020 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 PERRIS LEE, Case No.: 3:19-cv-0125-AJB-MDD 14 Plaintiff, REPORT AND 15 v. RECOMMENDATION REGARDING DEFENDANTS’ 16 L. FUGA, et al., MOTION FOR SUMMARY 17 Defendants. JUDGMENT 18 [ECF No. 48] 19 20 This Report and Recommendation is submitted to United States 21 District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and 22 Local Civil Rule 72.1(c) of the United States District Court for the 23 Southern District of California. 24 For the reasons set forth herein, the Court RECOMMENDS 25 Defendants’ motion for summary judgment be GRANTED IN PART AND 26 DENIED IN PART. 27 1 I. PROCEDURAL HISTORY 2 Perris Lee (“Plaintiff”) is a state prisoner proceeding pro se and in forma 3 pauperis with a civil complaint filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 4 1, 3). On January 16, 2019, Plaintiff filed a Complaint against nine 5 correctional officers and one prison psychiatrist, claiming they violated his 6 civil rights by using excessive force, failing to protect him during an 7 emergency cell extraction, retaliating against him, failing to supervise 8 correctional officers, and by intentionally inflicting emotional distress. (ECF 9 No. 1 at 1-8).1 10 On February 3, 2020, the Court granted Defendant Dr. K. Rodriguez’s 11 motion for summary judgment for failure to exhaust administrative 12 remedies. (ECF No. 40). On February 4, 2020, partial judgment was 13 entered, and Dr. K. Rodriguez was dismissed from the case. (ECF No. 41) 14 On April 6, 2020, Defendants R. Calvert, R. Escamilla, L. Fuga, J. 15 Juarez, M. Kohler, D. Madara, E. Ortegama, M. Patricio, and J. Sierra moved 16 for summary judgment on all causes of action. (See ECF No. 48). Defendants 17 argue that they are not liable for Plaintiff’s § 1983 claims or intentional 18 infliction of emotional distress and that they are entitled to qualified 19 immunity. (Id.). On June 5, 2020, Plaintiff responded in opposition to 20 Defendants’ motion. (ECF No. 50). On June 19, 2020, Defendants replied in 21 support of their motion. (ECF No. 51). 22 23 24 25 26 1 All pincite page references refer to the automatically generated ECF page number, not the page number in the original document. 27 1 II. STATEMENT OF FACTS 2 In September 2017, Plaintiff, an inmate incarcerated at California State 3 Prison-Sacramento (“CSP-SAC”), was transferred to R.J. Donovan 4 Correctional Facility (“RJD”). (ECF No. 48-4; See ECF No. 1 at 1). At RJD, 5 Plaintiff was placed in a mental health crisis bed within the Central 6 Treatment Center (“CTC”). (ECF No. 48-4 at ¶ 4). 7 At 3:15 a.m., Defendant Sgt. Kohler informed Plaintiff he was going to 8 be sent on a special transport back to CSP-SAC. (ECF No. 48-10 at ¶ 4). Sgt. 9 Kohler ordered Plaintiff to exit his cell for transport. (Id.). Plaintiff refused 10 to exit his cell. (Id.). Sgt. Kohler left and informed the Watch Commander, 11 Lt. Calvert, of Plaintiff’s noncompliance. (Id.). At approximately 3:25 a.m., 12 Lt. Calvert attempted to convince Plaintiff to exit his cell. (ECF No. 48-8 at ¶ 13 2-3). Plaintiff refused to exit his cell. (Id.). 14 Sgt. Kohler assembled an extraction team to remove Plaintiff from his 15 cell for transport consisting of Defendant Officers Fuga, Patricio, Ortegama, 16 Sierra, Escamilla, and Madara, and authorized the “controlled use of force.”3 17 . (ECF Nos. 48-8 at ¶4; 48-6 at ¶ 2, 48-8 at ¶ 4, 48-10 at ¶ 6, 48-11 at ¶ 2, 48- 18 12 at ¶ 2, 48-13 at ¶ 2, 48-14 at ¶ 2, 48-15 at ¶ 2). At 3:35 a.m., Lt. Calvert 19 began the cool down period.4 (ECF No. 48-8 at ¶ 4). During the cool down 20 period Lt. Calvert individually contacted Dr. K. Rodriguez, the clinical 21 2 These material facts are taken from the parties' pertinent cited exhibits. The Court 22 notes that the overwhelming majority of facts are disputed by the parties. Disputed material facts are discussed in further detail where relevant to the Court's analysis as it 23 relates to a specific cause of action. Facts that are immaterial for purposes of resolving 24 the current motion are not included in this recitation. 3 A controlled use of force is used when “force is necessary but does not involve an 25 imminent threat to subdue an attacker, effect custody or to overcome resistance, the force shall be controlled. See CDRC DOM 51020.12. 26 4 A “cool down” period must precede a “controlled use of force” to allow the inmate an opportunity to comply with custody staff orders. See CDRC DOM 51020.12. 27 1 psychologist, and Associate Warden J. Juarez, the Administrative Officer of 2 the day, to inform them of Plaintiff’s refusal to exit his cell for transport. 3 (Id.). 4 At 4:45 a.m., Associate Warden J. Juarez arrived at the facility, and 5 tried to convince Plaintiff to exit his cell for the special transport. (ECF No. 6 48-4 at ¶ 12). Again, Plaintiff refused to exit his cell. (Id.). At 4:52 a.m., Dr. 7 K. Rodriguez arrived at the CTC, and attempted to persuade Plaintiff to 8 comply and exit his cell. (ECF No. 48-9 at ¶ 3). While speaking to Plaintiff 9 through the food port of the cell door, Dr. K. Rodriguez observed Plaintiff 10 squatting down and cutting his left arm with an unidentified object. (Id. at ¶ 11 4). Dr. K. Rodriguez alerted Sgt. Kohler of this observation. (Id. at ¶ 5). 12 Just prior to 5:13 a.m., Sgt. Kohler ordered the team to remove Plaintiff 13 from his cell with “immediate use of force” due to Plaintiff injuries.5 (ECF 14 No. 48-10 at ¶ 7; ECF Nos. 48-8 at ¶ 5, 48-10 at ¶ 7). At 5:13:23 a.m., Dr. K. 15 Rodriguez explained that Plaintiff was scratching himself. (ECF No. 48-16 at 16 video timestamp 5:13:25-5:13:40). At 5:13:45 a.m., Sgt. Kohler approached 17 Plaintiff’s cell and ordered him to “cuff up” and submit to handcuffs six times. 18 (ECF No. 48-16 at video timestamp 5:13:45-5:14:03). Plaintiff’s response, if 19 any, is not intelligible. (Id.). Plaintiff “was packing when the Defendants 20 arrived” at his cell door. (ECF No. 50 at 2). At 5:14:10 a.m., Sgt. Kohler 21 opened the cell door and the extraction team entered. (ECF No. 48-16 at 22 video timestamp 5:14:10). 23 The five-man extraction team took roughly 25 seconds to restrain 24 Plaintiff. (ECF No. 48-16 at video timestamp 5:14:10-5:14:33). The video 25 5 An immediate use of force is used “when time and circumstances do not permit advanced 26 planning, staffing and organization, and an imminent threat exists to institution/facility security or safety of persons . . . .” CDRC DOM 51020.11. 27 1 recording of the incident blocks any view of Plaintiff. (See id.). Plaintiff was 2 then escorted to the transport vehicle and was placed on special transport to 3 CSP-SAC. (ECF Nos. 48-10 at ¶ 10, 48-14 at ¶ 10-11). 4 III. LEGAL STANDARD 5 “A party may move for summary judgment, identifying each claim or 6 defense—or the part of each claim or defense—on which summary judgment 7 is sought. The court shall grant summary judgment if the movant shows that 8 there is no genuine dispute as to any material fact and the movant is entitled 9 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A judgment must be 10 entered, “if, under the governing law, there can be but one reasonable 11 conclusion as to the verdict.” Anderson v. Liberty Lobby, 477 U.S. 242, 250 12 (1986). “If reasonable minds could differ,” judgment should not be entered in 13 favor of the moving party. Id. at 250-51. 14 The parties bear the same substantive burden of proof as would apply 15 at a trial on the merits, including plaintiff’s burden to establish any element 16 essential to his case. Id. at 252; Celotex Corp. v. Catrett, 477 U.S. 317, 322 17 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The moving party 18 bears the initial burden of establishing the basis of its motion and of 19 identifying the portions of the declarations, pleadings, and discovery that 20 demonstrate absence of a genuine issue of material fact. Celotex Corp., 477 21 U.S. at 323. The moving party has “the burden of showing the absence of a 22 genuine issue as to any material fact, and for these purposes the material 23 lodged must be viewed in the light most favorable to the opposing party.” 24 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “A material issue of 25 fact is one that affects the outcome of the litigation and requires a trial to 26 resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard Corp., 27 1 677 F.2d 1301, 1306 (9th Cir. 1982). More than a “metaphysical doubt” is 2 required to establish a genuine issue of material fact. Matsushita Elec. 3 Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 4 The burden then shifts to the non-moving party to establish, beyond the 5 pleadings, that there is a genuine issue for trial. See Celotex Corp., 477 U.S. 6 at 324. To successfully rebut a properly supported motion for summary 7 judgment, the nonmoving party “must point to some facts in the record that 8 demonstrate a genuine issue of material fact and, with all reasonable 9 inferences made in the plaintiff[’s] favor, could convince a reasonable jury to 10 find for the plaintiff[].” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 11 738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex Corp., 477 U.S. at 323; 12 Liberty Lobby, 477 U.S. at 249). 13 IV. DISCUSSION 14 Defendants move for summary judgment on Plaintiff’s claims against 15 them for excessive force, failure to supervise, retaliation, or intentional 16 infliction of emotional distress. (See ECF No. 48). Specifically, Defendants 17 move on the grounds that their use of force was reasonable and that they are 18 entitled to qualified immunity. (Id.). Plaintiff opposes entry of judgment in 19 Defendants’ favor asserting there are genuine issues of material fact on all of 20 Plaintiff’s claims. (See ECF No. 50). 21 A. Eighth Amendment Excessive Use of Force 22 Plaintiff claims Defendants used excessive force against him in 23 violation of his Eighth Amendment rights. The Eighth Amendment prohibits 24 the infliction of cruel and unusual punishment. U.S. Const. amend. VIII. To 25 prevail on an Eighth Amendment claim under § 1983, the plaintiff must show 26 that objectively he suffered a “sufficiently serious” deprivation. Farmer v. 27 1 Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 2 298 (1991)). The plaintiff must also show that subjectively defendants had a 3 culpable state of mind in allowing or causing the plaintiff’s deprivation to 4 occur. Id. (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). 5 Objectively, Plaintiff alleges he received a black eye, swollen hands, and 6 bruised his ribs as a result of the extraction. The parties do not dispute that 7 Plaintiff’s injuries are sufficiently serious. Thus, the Court turns to the 8 subjective prong. 9 “[W]henever prison officials stand accused of using excessive physical 10 force in violation of the Cruel and Unusual Punishments Clause, the core 11 judicial inquiry is that set out in Whitley v. Albers: whether force was applied 12 in a good-faith effort to maintain or restore discipline, or maliciously and 13 sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing Whitley, 475 U.S. 14 312). To determine whether the force used was excessive, courts consider 15 factors such as: 1) the need for the application of force, 2) the relationship 16 between the need and amount of force that was used, 3) and the extent of 17 injury inflicted. Whitley, 475 U.S. at 321. Courts should also consider 18 “[e]qually relevant [] factors as: 4) the extent of the threat to the safety of 19 staff and inmates, as reasonably perceived by the responsible officials on the 20 basis of facts known to them, and 5) any efforts made to temper the severity 21 of a forceful response.” (Id.). 22 The first Hudson factor to consider is the need for the application of 23 force. See Hudson, 503 U.S. at 7. The Ninth Circuit has ruled that the use of 24 force may be necessary "if a prisoner refuses after adequate warning to move 25 from a cell or upon other provocation presenting a reasonable possibility that 26 slight force will be required." Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 27 1 1979). It is undisputed that Plaintiff was ordered for transfer on a special 2 transport to CSP-SAC, that he refused to exit his cell for transfer on 3 numerous requests, and that he was scratching himself. There is no material 4 question of fact in dispute that there was a need for the extraction team to 5 forcibly remove Plaintiff from his cell because he was noncompliant with 6 Defendants’ orders and was injuring himself. See Stanfill v. Talton, 851 F. 7 Supp. 2d 1346, 1371 (E.D. Georgia March 29, 2012) (inmate's history of self- 8 mutilation, coupled with his most recent cutting incident made it clear there 9 was a need for some application of force). 10 This case, however, falls on Hudson’s second factor: the relationship 11 between need for force and the amount of force used. See Hudson, 503 U.S. 12 at 7. Correctional officers may only use force in proportion to the need in 13 each specific situation. Spain, 600 F.2d at 195. If the force officers use is so 14 “disproportionate to that required that it suggests deliberate sadism,” it 15 violates the Eighth Amendment. Rodriguez v. Evans, 2009 U.S. Dist. LEXIS 16 65525, at *26 (N.D. Cal. July 27, 2009). 17 The Court cannot determine whether Defendants’ use of force was 18 reasonable. Defendants maintain that Plaintiff was resisting Defendants’ 19 attempts to restrain him. (See ECF Nos. 48; 48-11 at ¶¶ 7-8; 48-12 at ¶¶7-8; 20 48-13 at ¶ 9). In comparison, Plaintiff declares that he was compliant and 21 did not resist. (See ECF Nos. 48-3 at 15, 50). The only objective evidence 22 presented is the video recording. The video footage does not show whether 23 Plaintiff resisted or was compliant. (ECF No. 48-16 at video timestamp 24 5:14:10-5:14:13). Defendants obscured any view of Plaintiff during the 25 extraction, aside from brief glimpses of Plaintiff’s limbs. (See Id. at video 26 timestamp 5:14:16-5:14:48). Accordingly, there are genuine issues of 27 1 material fact and Defendants are not entitled to summary judgment on 2 Plaintiff’s claim for the use of excessive force. 3 B. Failure to Supervise and Protect, Intentional Infliction of 4 Emotional Distress, and Qualified Immunity 5 In light of the issues of material fact relating to Defendants’ use of 6 force, the Court cannot determine whether Defendants failed to supervise the 7 extraction team, failed to protect Plaintiff from unreasonable use of force, or 8 whether Defendants intentionally inflicted emotional distress. Accordingly, 9 Defendants are not entitled to summary judgment as these claims. Similarly, 10 the court cannot find that Defendants are entitled to qualified immunity. 11 C. First Amendment Retaliation 12 Plaintiff also claims Defendants retaliated against him in violation of 13 the First Amendment. (See ECF No. 1 at 7). Plaintiff claims that Dr. K. 14 Rodriguez retaliated against him for threatening to file an inmate grievance 15 against her. (Id. at 5-7). Specifically, he claims that Dr. K. Rodriguez lied 16 about Plaintiff scratching himself so that the extraction team would forcibly 17 remove him from his cell. (Id.). Defendants argue that they did not take 18 adverse action against Plaintiff and instead acted with a legitimate 19 correctional purpose to prevent him from further injuring himself and to 20 transfer him to CSP-SAC. (See ECF No. 48). 21 Upon entering a prison, inmates do not lose all their First Amendment 22 Rights. See Remmers v. Brewer, 475 F.2d 52 (8th Cir. 1973). The First 23 Amendment protects against “deliberate retaliation” by prison officials 24 against an inmate’s exercise of his right to petition for redress of grievances. 25 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Such 26 conduct is actionable even if it would not otherwise rise to the level of a 27 1 constitutional violation because retaliation by prison officials may chill an 2 inmate’s exercise of legitimate First Amendment rights. Thomas v. 3 Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). A prisoner suing prison officials 4 for retaliation must allege that he was retaliated against for exercising his 5 constitutional rights and that the retaliatory action did not advance 6 legitimate penological goals. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 7 1995); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rizzo v. 8 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 9 Filing administrative grievances is a protected activity, and it is 10 impermissible for prison officials to retaliate against prisoners for engaging 11 in these activities. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 12 However, it is undisputed that Plaintiff was scratching himself. Defendants 13 did not extract Plaintiff in retaliation for threating to file an inmate 14 grievance. Rather, the evidence shows Defendants extracted Plaintiff to 15 prevent him from further injuring himself. Accordingly, Defendants are 16 entitled to summary judgement on Plaintiff’s First Amendment retaliation 17 claim. 18 VI. CONCLUSION 19 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the 20 District Court issue an Order: (1) Approving and Adopting this Report and 21 Recommendation; (2) GRANTING Defendants’ motion for summary 22 judgment as to Plaintiff’s retaliation claim; and (3) DENYING the remainder 23 of Defendants’ motion for summary judgment. 24 IT IS HEREBY ORDERED that any written objections to this Report 25 must be filed with the Court and served on all parties no later than October 26 27 1 2020. The document should be captioned “Objections to Report and 2 || Recommendation.” 3 IT IS FURTHER ORDERED that any reply to the objection shall be 4 ||filed with the Court and served on all parties no later than November 4, 5 ||2020. The parties are advised that the failure to file objections within the 6 specified time may waive the right to raise those objections on appeal of the 7 || Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 8 IT IS SO ORDERED. Dated: October 13, 2020 Mitel [> Hon. Mitchell D. Dembin 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 at 11 10 .p7.N195_.ATR_MT)T)