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Bacon v. Kolender

December 18, 2008

ARNOLD C. BACON, JR., PLAINTIFF,
v.
WILLIAM B. KOLENDER, SAN DIEGO SHERIFF, AND COUNTY OF SAN DIEGO, DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER: (1) GRANTING DEFENDANTS' PARTIAL MOTION FOR SUMMARY JUDGMENT [Doc. No.129] PURSUANT TO FED.R.CIV.P. 56; AND (2) ISSUES ORDER TO SHOW CAUSE WHY PARTIAL JUDGMENT SHOULD NOT BE ENTERED FOR COUNTY OF SAN DIEGO AND SHERIFF KOLENDER IN HIS OFFICIAL CAPACITY

I. Procedural Background

This matter comes before the Court on Defendants' Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 129]. The Court has considered the papers filed in support of Defendants' motion, Plaintiff's Opposition, Defendants' Reply, as well as all relevant pleadings and documents in the Court's file. For the following reasons, the Court GRANTS Defendants' Motion.

II. Procedural History

Before the Court is Plaintiff Arnold Bacon's First Amended Complaint ("FAC"), filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983 [Doc. No. 45]. On December 8, 2006, Defendants filed their first Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 65]. After reviewing all papers filed, both in opposition to and in support of Defendants' Motion, the Court granted in part and denied in part Defendants' Motion. See Sept. 6. 2007 at 21-22. However, at the time of trial, Defendants expressed confusion as to the claims that remained against Defendant Kolender in his individual capacity. Thus, the Court granted Defendants' request for a continuance of the trial and permitted leave for Defendants to file an additional Motion for Summary Judgment to resolve the remaining issues prior to trial. See June 23, 2008 Order at 1.

On July 25, 2008, Defendants filed their second Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 129]. The Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn1 Plaintiff filed his Opposition [Doc. No. 133], to which Defendants have Replied [Doc. No.137].*fn2 Moreover, Plaintiff's First Amended Complaint is verified under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under FED.R.CIV.P. 56.). This matter has been submitted on the papers for determination without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1.

III. Factual Allegations

From March 20, 2003 to April 24, 2003, Plaintiff was temporarily moved from Atascadero State Hospital ("Atascadero") to the San Diego Central Detention Facility ("CDF"), a correctional facility operated by the San Diego County Sheriff's Department. However, Plaintiff only spent a few hours at CDF and spent the majority of his time housed at George Bailey Detention Facility ("GBDF") which is also operated by the San Diego County Sheriff's Department. (See FAC at 1, 4; Pl.'s Depo. at 10.)

San Diego County Sheriff Deputies strip searched Plaintiff upon arrival to CDF, again when he was transported to GBDF, each time he was transported from GBDF to court for his civil commitment hearings, and at least one time each week while housed at GBDF. (See FAC at 3; Pl.'s Depo. at 19-20.) Specifically, Plaintiff claims that during these searches he was required to "remove all his clothes, shake his hair out with his fingers, run a finger around his mouth, pull his penis up for inspection," and "bend over and put his buttocks apart while coughing three times." (FAC at 4.) Defendants believed these searches to be "proper according to County Jail policies that were in effect in 2003." (Defs.' Motion at 2; Defs.' Exhibit "C," Declaration of Lieutenant Wayne Brooks at ¶ 8.) On at least two occasions, Plaintiff's strip searches were conducted in the view of female correctional officers. (See Pl.'s Depo. at 23.) Plaintiff also maintains that he was forced to use the bathroom and shower in the line of sight of female correctional officers. (See FAC at 7.)

In addition, Plaintiff alleges that he was handcuffed to a penal detainee during transportation to and from GBDF and on one occasion he was "spat" upon by a penal detainee on the bus. (Id. at 8.) Because Plaintiff's movements were constrained by the handcuffs, he was unable to remove the spit from his neck for over thirty minutes. (Id.)

When Plaintiff arrived at the CDF, jail officials determined that he would not be permitted to keep all the medicines that had been prescribed for him at Atascadero. (Id. at 5.) Specifically, Plaintiff claims to have an "itching" problem, as well as the need for an inhaler. (Id.) Defendants acknowledge that some of Plaintiff's medications were not stocked at GBDF but he was prescribed Benadryl along with a medication for dry skin. (Id., Pl.'s Depo. at 25-30; Defs.' Exhibit "E," Declaration of Dr. Earl Goldstein at ¶¶ 5-7.) While Plaintiff was not permitted to have his inhaler with him at all times, Defendants brought the inhaler to Plaintiff every twelve (12) hours. (Pl.'s Depo. at 31.) Plaintiff did not have any "breathing attacks" at GBDF. (Id. at 32.) Plaintiff also contends that he was not permitted to have ear plugs while he was housed at GBDF, and as a result, he was not able to get as much sleep as he normally would while housed at Atascadero. (Id. at 30.)

Finally, when Plaintiff attempted to use the telephone to call his attorney, a warning sign was placed on the telephone which stated that "the telephones in this area may be monitored or recorded" and that inmates "have no expectation of privacy when speaking on the phones." (See FAC at 6; see also Pl.'s Depo. at 33-34.)

IV. Motion for Summary Judgment per FED.R.CIV.P. 56(c)

Defendants seek summary judgment on the grounds that: (1) there are no genuine issues of material facts to support Plaintiff's constitutional claims; and (2) Sheriff Kolender is entitled to qualified immunity as to all remaining claims.

A. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence which the moving party "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To successfully rebut a properly supported motion for summary judgment, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inferences made in the plaintiff[]'s favor, could convince a reasonable jury to find for the plaintiff[]." Reese ...


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