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Rogers v. Sisto

August 25, 2008

WILBERT ROGERS, JR., PLAINTIFF,
v.
D. K. SISTO, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. This action proceeds on the November 11, 2006, complaint in which plaintiff claims that defendant A. A. Boholst used excessive force against plaintiff in violation of the Eighth Amendment and filed a false disciplinary report against him in violation of the Fourteenth Amendment. Currently pending before the court are defendant's motion for summary judgment and plaintiff's motion to continue summary judgment. Plaintiff has not filed any opposition to the motion for summary judgment. For the reasons explained below, the court finds that plaintiff's motion must be denied and defendant's motion must be granted.

I. Facts

At all times relevant to this action, the plaintiff was a prisoner in the California Department of Corrections and Rehabilitation confined at California State Prison, Solano. See Compl., at 1, 2. Defendant Boholst was a medical technical assistant ("MTA") there. Id., at 2. As an MTA, Boholst was responsible for distributing medications to prisoners and for monitoring prisoners' access to the medical facility. Def.'s Stmt. of Undisp. Facts in Supp. of Mot. for Summ. J. ("SUF"), 2; Boholst Decl., ¶ 2. He has no authority to conduct disciplinary hearings or any influence over disciplinary proceedings. Id., at ¶ 3. Neither does he have any authority over the location of prisoners' housing or transfer to a different facility. Id.

On March 3, 2006, a number of prisoners sought access to the medical clinic through a breezeway from the yard. Boholst Decl., ¶ 4. Plaintiff was one such prisoner. SUF 1. At his deposition, he testified that there was a long line, and prisoners were "kind of rushing through the gate. Everybody is trying to get their medication and go to work." Boholst Decl., Ex. C, Deposition of Plaintiff ("Pl.'s Dep."), at 26. Plaintiff testified that when he stepped up to the gate, "Boholst slam[med] his hand into my chest, said, 'Hold it right there.'" Id., at 26:14-16. He claimed that Boholst used the heel part of his palm in stopping plaintiff with force hard enough to push plaintiff, who weighed 200 pounds, backwards a couple of feet. Id., at 27:14, 20-22, 25. Plaintiff further testified that when he asked Boholst why he slammed him in the chest, Bolhost responded that he would put his hands on plaintiff any time he wanted, and then demanded plaintiff's identification. Id., at 26:20-25. Plaintiff said that he put his hands in the air over his head with his identification between his index fingers while Boholst was "ranting and raving," and that Boholst then hit plaintiff in the chest area with his right hand. Id., at 30:9-15, 24. Plaintiff clarified that "it was more of a push hit," than the first contact. Id., at 20. He began to walk away from Boholst with his hands still in the air above his head holding his identification, when, he claims, Boholst grabbed plaintiff from the back on the left shoulder and under his arm. Id., at 32, 11-16, 21. Boholst allegedly swung plaintiff around, and plaintiff backed off to avoid being hit again. Id., at 33:1-6, 15-17. Then, plaintiff claims, Boholst blew his whistle, and plaintiff continued walking away from Boholst but towards an area where other officers were located. Id., at 33:21-23. Plaintiff's hands still were in the air. Id., at 23-24.

Boholst sounded a security alarm. Id., at 33:24-25. Plaintiff testified that the confrontation startled him because Boholst is significantly shorter and smaller than plaintiff. Id., at 30:1-7.

Boholst gives a different version of the events. He asserts in his declaration that he told plaintiff that it was too crowded for plaintiff to gain access to the medical clinic at that time, and plaintiff became "belligerent and disrespectful." SUF 3. According to Boholst, he directed plaintiff to hand over his identification card so that Boholst could document plaintiff's behavior, but plaintiff disobeyed the order. SUF 4. Boholst allegedly repeated the order, but plaintiff still disobeyed. SUF 6. Boholst says he ordered plaintiff to leave the gate area, but again, plaintiff disobeyed the order. SUF 5. Ultimately, plaintiff did leave the gate area, and Boholst alleges that he followed plaintiff in order to identify him so that he could write a disciplinary report for disrespecting an officer. SUF 7, 8. Plaintiff was in front of the dining facility when Boholst caught up with him. SUF 9. Boholst ordered plaintiff to hand over his identification card. SUF

9. In response, plaintiff allegedly walked quickly towards Boholst until he was about one inch away from Boholst and "made contact" with Boholst's outstretched hand with his own hand. SUF 10. Boholst, feeling threatened, blew his whistle three times to signal that he felt an imminent threat to his safety and to the security of the institution. SUF 11. Several guards responded, following which plaintiff underwent a medical evaluation. SUF 12-13. A different MTA examined plaintiff and determined that he was not injured. SUF 14, 15. Plaintiff was placed in administrative segregation.

On March 3, 2006, Boholst completed a form 128-B, "General Chrono," describing plaintiff's behavior that day. SUF 17, 20. This form is not a disciplinary report. SUF 18. It is a form for keeping a chronological written record of significant events during and information relevant to a prisoner's confinement, and is maintained in a prisoner's central file. SUF 18, 19. In it, Boholst described the events at the gate, and stated the following about what happened near the dining hall:

When confronted to surrender his ID, he proceeded to come at me until he was an inch away hitting my outstretched hand with his hand. At this point I felt that he intended to harm me and was just looking for an excuse to start hitting me. The threat was reinforced when he said in a very aggressive, confrontational and threatening manner, "Hit me Hit me." [sic] several times trying to provoke me. I immediately blew my whistle three times to alert staff of a probable imminent threat to my safety and the security of the institution. It was then that several officers responded to the alarm.

Boholst Decl., Ex. A. Also in that 128-B form, Boholst stated that he would fear for his safety if plaintiff were released from administrative segregation. SUF 21. He requested that plaintiff be transferred to a different prison. SUF 22.

On March 27, 2006,*fn1 Boholst received a letter from plaintiff. SUF 23. In its entirety, the letter states:

Mr. Boholst, I'm Currently [sic] in ad-seg as a result of the incident of 3-3-06. I'm O.K. with my punishment and I sincerely want you to be O.K. with that also. I don't wish to persue [sic] this situation any further by filing any type of complaint or action against you, but I do wish to talk with you and this is my request for an interview.

Sometimes things go wrong when your in a bad situation, I live in on . . , and you work in on. I want you to know that I'm not taking any of this personally and I do apologize for any stress or discomfort I may have caused you. Man to man I would like to speak with you, please grant my interview. [sic].

(Emphasis in original). Boholst Decl., Ex. B. Defendant took this letter as a threat; and, therefore, he did ...


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