This matter came before the court on May 20, 2011, for hearing of defendants' motion and renewal of motion for judgment as a matter of law ("JMOL") pursuant to Federal Rule of Civil Procedure 50(b). (Doc. No. 167-1). The parties have previously consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. No. 96-98.)*fn1 Attorneys Stewart Katz and Guy Danilowitz appeared on behalf of plaintiff Drake Jones. Attorneys John Lavra and Amanda Butts appeared on behalf of defendants Daniel Morrissey, Justin Chaussee, Ken Becker, Christopher Mrozinski and Chris Conrad. Oral argument was heard and defendants' motion was taken under submission. For the reasons set forth below, defendants' renewed motion for judgment as a matter of law will be denied.
On February 3, 2010, plaintiff filed an amended complaint in which he alleged, pursuant to 42 U.S.C. § 1983, that the defendant deputies unreasonably seized him and used excessive force against him in violation of his rights under the Fourth Amendment to the U.S. Constitution and that defendant Morrissey failed to properly supervise the other defendants in their use of force against plaintiff.
Plaintiff's version of the events, which he presented at trial, was in summary as follows. On August 5, 2008, he was helping a friend move and got into a verbal dispute with the landlord of the property, resulting in plaintiff's arrest. Plaintiff was booked into the Sacramento County Main Jail and was placed into a so-called sobering cell, although there was no indication that he was under the influence of either alcohol or drugs. Shortly after being placed in the sobering cell plaintiff observed raw sewage containing feces and urine coming out of a drain on the floor of the cell. Plaintiff attempted to alert jail staff about the situation by banging on the window and pointing at the drain. In an attempt to distance himself from the sewage, plaintiff curled up on a bench/ledge in the sobering cell. Shortly thereafter, deputies Morrissey, Chaussee, Becker, Mrozinski and Conrad entered the cell. Incorrectly believing that plaintiff was responsible for the flooding of the cell, the deputies grabbed plaintiff, twisted his arms and took him to the ground and into the raw sewage. The deputies used their feet and knees and forced plaintiff's face and body into the sewage on the cell floor. The deputies then handcuffed plaintiff, bound his feet, and forcibly moved him into a so-called safety cell. On arrival at the safety cell*fn2 , the defendant deputies forced plaintiff onto the floor face down and told him not to move. The defendant deputies left plaintiff laying on his stomach on the floor of the safety cell, in sewage-soaked clothing and with his hands and feet bound with his pants pulled down around his ankles for approximately two hours. Thereafter, the defendant deputies returned to the safety cell, got back on top of plaintiff, twisted his arms and asked if he had "had enough." Plaintiff cried out "yes," and the deputies removed plaintiff's handcuffs and shackles and left the cell. An hour later, plaintiff was moved to a third jail cell containing other prisoners and was eventually released. No criminal charges were ever brought against him stemming from this arrest.
Defendants denied plaintiff's allegations of wrongdoing on their part. In summary, they presented the following version of events at trial. Defendant Deputy Becker testified that he'd come in contact with plaintiff during the booking process and found his behavior during that process to be somewhat uncooperative. Because of that defendant Becker decided plaintiff was either under the influence of alcohol or "coming off" of drugs and designated him for placement in the sobriety cell, which was typically dirty. According to defendant Becker, when he returned to the sobriety cell area he saw water running out of the cell and observed plaintiff banging on the cell window and yelling. Based upon his observations of plaintiff during the booking process, defendant Becker assumed that plaintiff had intentionally plugged the toilet to flood the sobriety cell.*fn3 He so informed his fellow defendant deputies, who gathered with defendant Sgt. Morrissey and formed a plan to remove plaintiff from the sobriety cell and move him to a safety cell. Defendant deputies Chaussee, Becker, Mrozinski and Conrad, in defendant Morrissey's presence and under his personal supervision, entered the sobriety cell and placed their hands on plaintiff to remove him. As the four deputies guided plaintiff toward the cell door, according to the defendants, plaintiff stiffened and began pulling toward the left thereby resisting. The defendants took plaintiff to the wet floor of the cell face down only in order to gain control and place him in restraints. This took some time because plaintiff, while not fighting, was not completely cooperative and due to mechanical difficulties with the handcuffs and restraints. According to defendants, plaintiff was taken in shackles to the safety cell because he had resisted the deputies. Moreover, the shackles were removed approximately an hour after plaintiff was placed in that isolation cell. While they perhaps did not document checking on plaintiff while in the safety cell as often as they were supposed to, according to defendants, all the actions they took with respect to plaintiff were proper and in keeping with their training and jail procedures.
Plaintiff proceeded to trial on the theory that the defendants had engaged in the excessive use of force against him in violation of his Fourth Amendment right first, in forcing him face down into the sewage on the floor of the sobriety cell and applying unnecessary physical force against him there. Second, plaintiff argues that the defendants had used excessive force in placing him shackled in the safety cell, in his view, soaked in raw sewage and leaving him there with his pants around his ankles for approximately two hours. All of plaintiff's own actions as well as his interactions with deputies inside the Sacramento County Main Jail, as well as all of his time spent in the three cells, was captured on the jail surveillance camera. The parties placed those videotapes into evidence and both played and re-played them for the jury at length. The jury was exposed to the video footage in slow motion, in freeze frame and in every other possible manner of presentation. Witness after witness interpreted, from their own point of view, what the video of each incident in fact depicted. Thus, the dispute was clearly framed for the jury: (1) did the defendants violate plaintiff's Fourth Amendment rights by subjecting him to excessive force in the sobriety cell? (2) did the defendants violate plaintiff's Fourth Amendment rights by subjecting him to excessive force in the safety cell? (3) did defendant Sgt. Morrissey fail to properly supervise the deputies under his command in their use of force against plaintiff?
The jury trial in this action commenced on February 22, 2011. At the conclusion of the evidence, on March 3, 2011, counsel for defendants filed a motion for judgment as a matter of law (JMOL). (Doc. No. 147.) Therein, defense counsel argued as follows:
At trial, Plaintiff continually asserts two instances of excessive force by Defendants that allegedly violated Plaintiff's Fourth Amendment rights. The first is restraining Plaintiff and taking him to the floor in the sobriety cell. The second is the placement of Plaintiff in the safety cell while handcuffed and shackled and without the opportunity to wash off. Even construed in the light most favorable to Plaintiff, the facts regarding the alleged second instance of force do not establish a violation of Plaintiff's Fourth Amendment rights to be free from excessive force. In fact, the alleged second instance of force is not a claim of force at all, but a claim about the conditions of Plaintiff's confinement while at the jail. Plaintiff should not be able to transmute what is truly a Fourteenth Amendment substantive due process or condition of confinement claim, or a state law intentional infliction of emotional distress claim, into a Fourth Amendment excessive force claim. Further, Plaintiff is not entitled to damages for violation of his Fourth Amendment right to be free from the use of excessive force for actions that implicate no force at all.
The Fourth Amendment sets the applicable constitutional limitations for considering claims of excessive force during pretrial detention. However, other claims brought by a detainee who has been neither charged nor convicted of a crime (e.g., claims of failure to provide care for serious medical needs, claims of abuse or unreasonable treatment during post-arrest interrogations, claims of failure to provide individuals in custody with basic human needs, etc.), are analyzed under the substantive due process clause of the Fourteenth Amendment. To the extent Plaintiff claims that placement in the safety cell violated his constitutional rights, it does not constitute a violation of his right to be free from the use of excessive force, and therefore is outside the scope of claims in this case. Additionally, to the extent Plaintiff claims that not having the ability (sic) wash violated his constitutional rights, it does not constitute a violation of his right to be free from the use of excessive force, and therefore is also outside the scope of claims in this case.
(Id. at 2-3) (internal citations omitted.) Defense counsel also argued
that JMOL should be granted because defendants were entitled to
qualified immunity. In this regard, defense counsel contended that
plaintiff had failed to establish a violation of his constitutional
rights and it was not clearly established at the time of the alleged
incident that placing an individual in a safety cell handcuffed and
shackled without the ability to wash himself constituted the use of
excessive force in violation of the Fourth Amendment such that a reasonable
officer would have known his actions were unlawful.*fn4
(Id. at 6.)
Following argument, defendants' JMOL motion was denied on March 4, 2011. (Doc. No. 151.) In so ruling, the court explained:
[T]hat the separate act of placing Mr. Jones in the safety cell following his removal from the sobriety cell was obviously, under the evidence, arguably carried out through the use of non-trivial physical force. That was certainly an element of the placement there.
And drawing -- of course, the issue of whether force is excessive under the Fourth Amendment is judged under a reasonableness standard as addressed by the Supreme Court in [Graham v. Connor, 490 U.S. 386, 395 (1989).]
However, in the Fourth Amendment context, claims of excessive force do not necessarily require allegations of assault but rather can consist of the physical structure and conditions of the place of a detention. And that was the Sixth Circuit ruling in [Burchett v. Kiefer, 310 F.3d 937, 946 (6th Cir. 2002)], and cases cited therein. In Burchett, in particular, the Sixth Circuit agreed that the plaintiff had stated a cognizable Fourth Amendment excessive use of force claim when he alleged that he was detained in a police car with ...