The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: 1) DISMISSING DEFENDANT HOENIG FOR FAILURE TO PROSECUTE AND FOR FAILURE TO STATE A CLAIM PURSUANT TO FED.R.CIV.P. 4(m), 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) [Doc. No. 28]
Christopher Charles Alexander Clack ("Plaintiff"), currently incarcerated at Centinela State Prison, is proceeding in pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983.
Plaintiff claims the San Diego County Sheriff's Department and two of its deputies violated his Eighth Amendment rights on March 29, 2007 at the San Diego Central Jail. Plaintiff seeks injunctive relief as well as general and punitive damages.
On April 22, 2009, the County of San Diego and Deputy Latimer ("Defendants") filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 28]. On April 24, 2009, the Court provided Plaintiff with written notice of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) [Doc. No. 29]. Plaintiff has filed an Opposition [Doc. No. 35], to which Defendants have filed a Reply [Doc. No. 33].
First, the Court notes that Plaintiff named the San Diego County Sheriff's Department as a defendant in error; it is the County of San Diego which has accepted service, has appeared and has answered as the appropriate entity subject to suit under 1983. Miranda v. Clark County, Nev., 319 F.3d 465, 469 (9th Cir. 2003) (en banc) (counties are "persons" subject to suit under § 1983); cf. Vance v. County of Santa Clara, 928 F .Supp. 993, 995-96 (N.D. Cal. 1996) ("persons" do not include municipal departments, therefore "[n]aming a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality.").
In addition, Plaintiff's Complaint names San Diego County Sheriff's Deputy Hoenig as a Defendant. Plaintiff claims Defendant Hoenig "aided and abetted" Deputy Latimer. (Compl. at 5.) However, the United States Marshal attempted, but was unable to execute service upon Hoenig at the address provided by Plaintiff [Doc. No. 9], and nothing in the docket indicates Plaintiff ever provided the Marshal with an updated address. Therefore, because Hoenig has never been served, the Court has no personal jurisdiction over him and he is not a party to this action. See FED.R.CIV.P. 4(m); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) ("In the absence of service of process (or waiver of service by the defendant)," under FED.R.CIV.P. 4, "a court ordinarily may not exercise power over a party the complaint names as a defendant." ); see also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) ("Before a ... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.").
Even if Plaintiff had served Deputy Hoenig, however, his Complaint fails to state a claim against him. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required in prisoner cases by 28 U.S.C. § 1915A(b)). Plaintiff's only allegation against Hoenig is that he violated Plaintiff's right to be free from cruel and unusual punishment.*fn1 (Compl. at 5.)
A pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Nevertheless, the same standards are applied, requiring proof that the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Jail officials, like Hoenig, have a duty to protect inmates from violence. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (deliberate indifference standard applies when guards fail to intervene in attacks by other guards); Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir. 1991) (en banc) ("[D]eliberate indifference" is the level of culpability pretrial detainees must establish to maintain a failure to protect claim under the Fourteenth Amendment).
Thus, to state a failure to protect claim against Deputy Hoenig Plaintiff must allege that Hoenig was "deliberately indifferent," i.e., that he was aware of, but nevertheless consciously disregarded an excessive risk to Plaintiff's health or safety. Farmer, 511 U.S. at 834. Plaintiff claims Deputy Hoenig "told him to stop eating and board the bus immediately," and assisted Deputy Latimer in placing hand cuffs on him. (Compl. at 11; Pl.'s Dep. at 43, 47-49.) However, Plaintiff does not allege that Hoenig did anything that might rise to the level of "deliberate indifference" and no evidence in the record on summary judgment supports such a claim. See Redman, 942 F.2d at 1442; Farmer, 511 U.S. at 833.
Thus, the Court dismisses Plaintiff's claims against Deputy Hoenig for insufficient service, lack of personal jurisdiction and for failing to state a claim upon which § 1983 relief can be granted. See FED.R.CIV.P. 4(m); 28 U.S.C. §§ 1915(e)(2), 1915A(b).
On March 29, 2007, Plaintiff, who was at the time charged with aiding and abetting a robbery, was transported from George Bailey Detention Facility to the San Diego Central Jail in order to attend a court proceeding in San Diego Superior Court. (Compl. at 1, 11 (Complainant's sworn "Description of Incident" dated July 19, 2007); Defs.' Ex. 1, Plaintiff's Deposition [hereafter "Pl.'s Dep."] at 41-43.)*fn2 After a detainee has made a court appearance, San Diego County Sheriff's Department deputies escort them back to the Central Jail. Detainees are then provided with dinner, which they eat in a holding cell together, before being transported by bus back to George Bailey. (Defs.' Ex. 2, Decl. Sgt. Jayson Kamoss [hereafter 'Kamoss Decl."] ¶¶ 3, 5.)
B. Plaintiff's Version of Events
On March 29, 2007, Plaintiff claims he was one of the last detainees to finish in court. When he finished and was placed in a holding cell, he was handed a dinner tray, but shortly after, Sheriff's deputies began removing people from the cell in order to begin boarding the bus. (Compl. at 11; Pl.'s Dep. at 42-44.) Plaintiff claims Deputy Hoenig came to door and told him it was time to get on the bus. Plaintiff said, "I'm not done eating," and asked Hoenig if he could take his food with him on the bus. (Id.) Hoenig replied, "No, you can't bring it on the bus," and told Plaintiff, "You've given up your right to eat. Put the tray down and get on the bus." (Compl. at 11; Pl.'s Dep. at 43, 47.) Plaintiff then claims to have "stepped back," and "started to shove stuff in [his] mouth real fast." (Id.) However, Hoenig "went for," or "yanked on" the Styrofoam tray while Plaintiff was still trying to eat, and he admits he did not put the food down as Hoenig had ordered. (Compl. at 11; Pl.'s Dep. at 47-48.)
At this point, Plaintiff claims Defendant Latimer partially entered the cell, and "yank[ed]" and "grabbed" him out into the hallway while the tray fell to the floor. (Compl. at 11; Pl.'s Dep. at 49-50.) Plaintiff was not hand or ankle-cuffed at the time Latimer pulled him out of the cell. (Compl. at 11; Pl.'s Dep. at 56.)
Latimer then "yanked [him] out and threw [him] against the wall." (Compl. at 11; Pl.'s Dep. at 50-53, 57, 68, 83.) While Plaintiff was facing the wall, Latimer ordered him to place his arms together high behind his back in an attempt to cuff his hands. (Id.) Before he placed Plaintiff's hands into cuffs, Plaintiff claims Latimer "goes off," and threatens to break Plaintiff's arm if he doesn't lift his arms higher. (Compl. at 11; Pl.'s Dep. at 54, 66-67; Pl.'s Opp'n at 11.)
At this point, Plaintiff claims Latimer placed one of his wrists in the cuffs. (Compl. at 11; Pl.'s Dep. at 54.) Plaintiff claims Latimer put his second hand cuff on "the wrong way," with one hand facing up and one facing down, "contort[ing] [his] arm in painful and unnatural ways." (Compl. at 11; Pl.'s Dep.at 54-55; Opp'n at 11.) Plaintiff claims because the cuffs were hinged and not chain-linked, one cuff rode up his arm and caused scarring on his right wrist. (Compl. at 11; Pl.'s Dep. at 55; Opp'n at 11.)
While still lined up against the wall next to the other detainees who were waiting to board the bus, Plaintiff claims Latimer and another deputy then "place[d] chains around his ankles." (Compl. at 11; Pl.'s Dep. at 58, 61.) Plaintiff claims Latimer was "leaning with his hand" against his back when Latimer or another deputy "yank[ed] up his second leg," which made him "slide down the wall." (Pl.'s Opp'n at 11; Pl.'s Dep. at 58, 61.) Plaintiff claims while "both [his] legs were in the air and Latimer was holding the chains that secured them, Latimer "taunted him by asking, "Now, what was that you were saying?" (Pl.'s Opp'n at 11.) Plaintiff next claims that after both his hands and legs were cuffed, Latimer "continued to throw him against the wall and the floor," despite the fact that he was "rendered immobile by Latimer's constant pressure on [Plaintiff's] back." Plaintiff claims Latimer finally "yanked [him] off the wall and . threw [him] probably four feet away" in a "Wrestle Mania" fashion. (Compl. at 11; Pl.'s Dep. at 62, 66.)
Plaintiff claims Latimer threw him to the floor "for no reason," because he was physically cooperating and was "fully restrained" by that time. (Pl.'s Opp'n at 11; Pl.'s Dep. at 66.) Plaintiff points to the videotaped footage of the incident to show that his legs "were secure before [he] was slam[m]ed to the floor" by Latimer. (Pl.'s Opp'n at 11.) Plaintiff claims when Latimer "slammed" him into the "texturized" floor on his "front part," he was unable to break his fall with his hands because they were cuffed behind him, so his chin hit the floor. (Compl. at 11; Pl.'s Dep. at 66, 69, Pl.'s Opp'n at 11.)
Plaintiff further alleges that while he was on the floor, and still "rendered immobile by Latimer's constant pressure on [his] back," Latimer "push[ed] his head against the floor with his body weight," "c[a]me down with his knees on [Plaintiff's] back," put his hand behind Plaintiff's head, and "slammed" his head against the floor "several times" until he "started to bleed from various areas of his face." (Compl. at 11-12; Pl.'s Dep. at 63, 69-70; Pl.'s Opp'n at 13.) While "pushing [his] head into the concrete several times," Plaintiff claims Latimer "mocked" and "chanted" next to his ear and "joked" to the deputies who were present, "Oh, look, he's bleeding." (Compl. at 12; Pl.'s Dep. at 70-71; Pl.'s Opp'n at 13.)
Next, Plaintiff claims Latimer picked him up off the floor and took him to the infirmary, where he was seen by a nurse. (Compl. at 12; Pl.'s Dep. at 71.) Upon arrival, Plaintiff claims Latimer continued "pushing" and threatening him in the presence of a nurse and an unidentified sergeant, and challenged him to a fist fight, by "placing his face in close proximity to [Plaintiff's] face." (Pl.'s Dep. at 71-72; Compl. at 12; Opp'n at 13.)
Plaintiff next claims the nurse treated his wounds, but "due to the[ir] severity ... asked the deputies to transfer [Plaintiff] to the University of California Medical Center for treatment." (Compl. at 12; Pl.'s Dep. at 77.) Plaintiff claims that Latimer instead "took [him] to a holding cell and left him there until he was found by the next shift." (Compl. at 12; Pl.'s Dep. at 77-78.) Plaintiff was later transported to UCSD Medical Center by officers on the next shift, where he received x-rays on his shoulder and wrist and stitches in his chin. (Compl. at 12; Pl.'s Dep. at 79, 85-87.)
C. Defendants' Version of Events
Defendant Latimer claims that on March 29, 2007, he was performing his duties as a second floor "court bridge" deputy in the San Diego Central Jail. (Defs.' Ex. 3 [hereafter "Latimer Decl."] ¶ 2.) A court bridge deputy's duties include receiving and processing inmates from other jails, producing them in court, and receiving them back into the jail, feeding them and coordinating their return to a bus which takes them back to the jail or other facility from which they came. (Id.)
At approximately 5:40 p.m., Latimer was lining up inmates in the transportation hallway on the first floor of the Central Jail to board a bus to the George Bailey Detention Facility. The inmates had just completed their court appearances and had been given meals in Transfer Holding Cell #1. (Id. ¶ 3.) As inmates exited the holding cell one by one, deputies scanned their bar-coded wrist bands and lined them up facing the wall so that waist chains could be applied prior to boarding the bus. (Id.)
Latimer claims he twice overheard heard Deputy Hoenig tell Plaintiff, who was still inside Holding Cell #1, to leave his food items inside the cell because it was time to board the bus. (Id. ¶ 4.) Latimer claims he next saw Hoenig place a clipboard and another item on the floor and reach into the holding cell to take the food from Plaintiff. (Id. ¶ 5; Defs.' Ex. 4 at 17:36:38.) Latimer then walked up to the cell and saw Hoenig had grasped Plaintiff's shirt sleeve. Latimer claims he observed Plaintiff "twisting his body and pulling away." (Latimer Decl. ¶ 5.)
Latimer claims that at this point, Plaintiff was the only inmate out of 40 not lined-up in the hallway, and was delaying the transportation process by refusing to cooperate with Hoenig's instructions. (Id. ¶ 6.) Therefore, Latimer "reached into the holding cell, took hold of the front of [Plaintiff's] shirt, and pulled [him] out of the cell." (Id. ¶ 7; Defs.' Ex. 4 at 17:36:38.) Latimer claims he "walked" Plaintiff to the end of the hallway, about 10-12 feet away from the other inmates, "placed him up against the wall and instructed him to stay against the wall and not to move." (Latimer Decl. ¶ 7.) Latimer claims Plaintiff "did not comply with [his] instructions" and "immediately turned off of the wall and turned his face toward [him]." (Id.)
Latimer then "pushed [Plaintiff] back against the wall," "placed [his] right hand on the middle of [Plaintiff's] back," and "for the second time ... instructed [Plaintiff] to stay against the wall." (Id. ¶¶ 8, 9.) Latimer claims Plaintiff again "did not follow ... instructions," and "turned his face and body to the side so that he could see [Latimer] behind him." (Id. ...