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Davis v. Kissinger

February 3, 2009



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter is before the court on plaintiff's motion for partial summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants have filed an opposition to the motion and plaintiff has filed a reply.


Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. On August 21, 2001, he and his fellow inmates filed a group appeal alleging that defendant Kissinger improperly targets African American inmates and deliberately attempts to provoke them by searching their cells, using racial slurs against them, and withholding and contaminating their food. Two days after filing that appeal, defendant Kissinger asked plaintiff and his cellmate if they wished to shower. Plaintiff responded yes, but asked defendant Kissinger to place his handcuffs above a brace plaintiff was wearing on his left wrist. Plaintiff alleges that as soon as he put his hand through the tray slot, defendant Kissinger grabbed his wrist and began bending it and putting pressure directly on his injury. When plaintiff pulled his arm back into the cell, defendant Kissinger said he was going to write him up. Defendant Kissinger then called an extraction team to plaintiff's cell, claiming that plaintiff had assaulted him. (Compl. 5-6.)

When the extraction team arrived, plaintiff presented defendant Peery with an inmate appeal. Defendant Peery refused to take it and yelled "Put your arms through the tray slot." Plaintiff asked defendant Peery to place his handcuffs above his wrist brace. Although defendant Peery placed the cuffs above his brace, he pulled on the cuffs as hard as he could, bending and twisting plaintiff's wrist and applying pressure to his injury. According to plaintiff, defendants Kissinger, Baker, Qualls, and Money stood by as the incident occurred and took no action. (Compl. at 6-7.)

As defendants Peery and Qualls escorted plaintiff out of the unit for an interview regarding his alleged assault on defendant Kissinger, plaintiff told them that he had back problems. Plaintiff also told them that defendant Kissinger was a Ku Klux Klansman. In response, defendants Qualls and Peery jerked plaintiff's arms up and caused plaintiff to suffer immediate back spasms. (Compl. at 7.)

Once plaintiff arrived at the program office he was placed in a cage. He stopped defendant Ingwerson and told her that he knew that she was aware of the numerous complaints against defendant Kissinger. As she was responding to him, defendant Money told plaintiff to leave his lieutenant alone and defendant Peery uttered racist comments. (Compl. at 7-8.)

Defendant Garrison was the medical technical assistant on duty that day. Defendant Garrison ignored plaintiff's repeated requests for pain and blood pressure medication. Defendant Garrison also refused to let plaintiff see a doctor and would not come near the cage to observe and make a notation of the indentation on plaintiff's wrist. The only notation that defendant Garrison made in the medical report was that plaintiff had difficulty standing in the cage. (Compl. at 8-9.)

Plaintiff was subsequently placed in administrative segregation. Defendant Kissinger came to his cell and took out his handcuffs stating "Hey Davis, remember these," and began to laugh. Plaintiff filed an inmate appeal complaining about defendant Kissinger's conduct and asking that prison officials to keep Kissinger away from him. Plaintiff also asked defendant Peery to recuse himself from responding to the appeal because he had a similar complaint against him, but defendant Peery refused. (Compl. at 9.)

Plaintiff wrote a letter to defendant Runnels about these various incidents, but defendant Runnels responded that he did not believe there was any racism at High Desert State Prison. Plaintiff also wrote defendant Runnels asking him to remove defendant Peery from hearing his appeal, but defendant Runnels did not respond. (Compl. at 9.)

On August 23, 2001, plaintiff saw Dr. Sandham and told him that he had a long history of back problems and that he had re-injured his left wrist. Dr. Sandham examined plaintiff and provided him with pain medication to treat his wrist and back pain. Plaintiff told him that the medication did not help, but Dr. Sandham still ordered the medication for him. (Compl. at 10-11.)

On November 20, 2001, plaintiff appeared for his rules violation hearing. Plaintiff alleges that the investigative employee report was incomplete and that defendant Norlin, the senior hearing officer, told him that if he pled guilty he would reduce the violation down to an administrative rules violation and plaintiff would most likely be released to the general population. According to plaintiff, when he refused to plead guilty defendant Norlin denied plaintiff's requests for witnesses and a new investigative employee and found plaintiff guilty of the lesser included offense. (Compl. at 10-12.)

On November 30, 2001, plaintiff was released from administrative segregation and submitted a medical request to see a doctor. On December 27, 2001, he saw Dr. Rohlfing who diagnosed him as suffering from a left wrist sprain and lower-back aggravation and referred him for casting of his left wrist and physical therapy for his wrist and back. (Compl. at 13.)

Plaintiff has raised the following eleven claims for relief in his complaint: Claim One: Defendant Kissinger engaged in racial intimidation that led to a group appeal against him on August 21, 2001, after he deliberately provoked black inmates by (1) searching their cells while they were on lockdown status, just days after a previous search, (2) using racial slurs, and (3) routinely withholding food or spitting in inmates' food before delivering it; defendant Kissinger used excessive force on August 23, 2001, when he pulled plaintiff's arm through the food tray slot in the cell door while handcuffing him and deliberately put pressure on plaintiff's injured wrist, in violation of plaintiff's Eighth Amendment rights; Claim Two: Excessive force was used by defendants Baker, Peery, Qualls, and Money during a cell extraction on August 23, 2001, after defendant Kissinger falsely claimed that plaintiff had assaulted him, in violation of plaintiff's Eighth and Fourteenth Amendment rights;

Claim Three: Defendants Ingwerson, Money, and Peery failed to properly supervise their subordinates during the cell extraction on August 23, 2001, in violation of plaintiff's Eighth and Fourteenth Amendment rights;

Claim Four: After plaintiff was removed from his cell on August 23, 2001, he was placed in a holding cage where defendants Garrison (a Medical Technical Assistant), Money, and Ingwerson denied plaintiff his medications for pain and high blood pressure, and defendant Garrison refused to examine plaintiff or allow plaintiff to see a doctor, in deliberate indifference to plaintiff's serious medical needs and in violation of plaintiff's Eighth Amendment rights;

Claim Five: At a disciplinary hearing conducted by defendant Norlin, the defendant denied plaintiff all requested witnesses and found plaintiff guilty of a lesser included offense, in violation of plaintiff's Eighth and Fourteenth Amendment rights;

Claim Six: Defendant Runnels instituted policies and practices that condoned misconduct and constitutional violations by subordinates, in violation of plaintiff's Eighth and Fourteenth Amendment rights;

Claim Seven: Defendants Kissinger, Peery, and Qualls deprived plaintiff of equal protection of the laws and violated federal criminal laws when they subjected plaintiff to racially-motivated excessive force;

Claims Eight through Eleven: Defendants Kissinger, Peery, Runnels, and Norlin violated plaintiff's rights under the California Constitution, state regulations, and state statutes. (Compl. at 14-32.)


On January 18, 2006, the court ordered the United States Marshal to serve plaintiff's complaint on defendants Baker, Ingwerson, Garrison, Money, Norlin, Peery, Qualls, and Runnels. On April 28, 2006, defendants moved to dismiss the entire action or, in the alternative, selected claims pursuant to non-enumerated Rule 12(b) and to dismiss other selected claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

On July 13, 2006, the undersigned issued findings and recommendations, recommending that defendants' motion to dismiss pursuant to non-enumerated Rule 12(b) be granted as to plaintiff's fifth, sixth, tenth, and eleventh claims; that plaintiff's fifth and eleventh claims against defendant Norlin and plaintiff's sixth and tenth claims against defendant Runnels be dismissed without prejudice due to plaintiff's failure to exhaust administrative remedies on those claims before bringing this action; and that defendants Kissinger, Baker, Peery, Qualls, Money, Ingwerson, and Garrison be directed to file an answer to plaintiff's complaint. On March 13, 2007, the assigned district judge adopted the findings and recommendations in full. On the same day, defendants Kissinger, Baker, Peery, Qualls, Money, Ingwerson, and Garrison filed an answer, and on March 22, 2007, the undersigned issued a discovery order. On June 2, 2008, plaintiff filed the instant motion for partial summary judgment, arguing that he is entitled to relief on his excessive force and state law claims.


Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]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. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 ...

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