Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. Kissinger

July 13, 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 defendants' motion summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion, and defendants have 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 for cuffing, 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 and claimed 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 at him to put his arms through the tray slot. Plaintiff asked defendant Peery to place his handcuffs above his wrist brace. Although defendant Peery placed the cuffs above plaintiff's 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 to the program office 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 holding cell. 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. Defendant Peery also passed by plaintiff's cell and uttered racist comments towards him. (Compl. at 7-8.)

Defendant Garrison was the medical technical assistant on duty that day. According to plaintiff, defendant Garrison ignored his repeated requests for his 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 cell. (Compl. at 8-9.)

Plaintiff subsequently was transferred to 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 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 24, 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 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' non-enumerated Rule 12(b) motion to dismiss 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 before bringing this action with respect to those claims; 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 those 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 a motion for partial summary judgment, arguing that he was entitled to judgment in his favor on his excessive force and state law claims. On February 3, 2009, the undersigned issued findings and recommendations, recommending that plaintiff's motion be denied because based upon the evidence presented to the court a reasonable jury could conclude that defendants' actions did not violate the Eighth Amendment, the Bane Civil Rights Act, the Ralph Civil Rights Act, or California tort law. The court also explained that plaintiff had no private cause of action for damages under the California Constitution's Cruel and Unusual Punishment Clause and that he failed to state a cognizable claim under the California Government Code and the California Code of Regulations. On March 10, 2009, the assigned district judge adopted the findings and recommendations in their entirety and dismissed plaintiff's latter state law claims with prejudice.

On October 9, 2008, defendants filed the instant motion for summary judgment, arguing that defendants Baker and Money did not fail to protect plaintiff, defendants Ingwerson, Money, and Peery did not fail to supervise their subordinates, defendants Garrison, Money, and Ingwerson did not fail to provide plaintiff with adequate medical care, none of the defendants deprived plaintiff of equal protection under the law, defendants Kissinger and Peery did not commit racially-motivated assault and battery in violation of either the Bane Civil Rights Act or the Ralph Civil Rights Act, and that all of the defendants are entitled to qualified immunity.


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 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).


I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Eighth Amendment and Excessive Force, Failure to Protect, and Inadequate Medical Care

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.

What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim the plaintiff must show that objectively he suffered a "sufficiently serious" deprivation. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

It is well established that "whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley, i.e., whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. A prisoner is not required to show a "significant injury" to establish that he suffered a sufficiently serious constitutional deprivation. Hudson, 503 U.S. at 9-10.

It is also well established that "prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer, 511 U.S. at 833. "Being violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offense against society.'" Id. at 834. Prison officials do not, however, incur constitutional liability for every injury suffered by a prisoner at the hands of another prisoner. Id. A prison official violates the Eighth Amendment "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847.

Finally, it is well established that "deliberate indifference to serious medical needs of prisoners constitutes 'unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104; McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06).

III. Fourteenth Amendment and Equal Protection

The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). "Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a viable claim under the Equal Protection Clause, however, a prisoner "must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent." Byrd v. Maricopa County Sheriff's Dep't, 565 F.3d 1205, 1212 (9th Cir. 2009) (quoting Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1026 (9th Cir. 1998)). "Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status." Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)).

IV. State Civil Rights Law

California's Bane Civil Rights Act ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.