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Donald Nelson, et al v. Butte County Sheriff's Department

March 9, 2012



Plaintiffs are prisoners proceeding through counsel in an action brought under 42 U.S.C. § 1983. Presently before the court are four motions for summary judgment filed by defendants:

(1) motion for summary judgment against all plaintiffs filed by defendants Butte County Sheriff's Department, Flicker, Deal, McNulty, Paley, Hovey, Morehead, Stockwell, Mell, Bentley, Narvais, Demmers, Maffucci, and Jones (collectively referred to as "County Defendants") (Dckt. No. 14); (2) motion for summary judgment against plaintiff Simpson filed by defendant California Forensic Medical Group, Inc. ("CFMG") (Dckt. No. 10); (3) motion for summary judgment against plaintiff Brewer filed by CFMG (Dckt. No. 17); and (4) motion for summary judgment against plaintiff Nelson filed by CFMG (Dckt. No. 27).*fn1 For the reasons set forth below, the court recommends that: (1) County Defendants' motion for summary judgment be granted in part and denied in part; (2) CFMG's motion for summary judgment against Simpson be granted in part and denied in part; (3) CFMG's motion for summary judgment against Brewer be granted; and (4) CFMG's motion for summary judgment against Nelson be granted.

I. Background

This action proceeds on the complaint filed by plaintiffs on October 6, 2009. Dckt. No. 1. In the complaint, plaintiffs allege that defendants violated their civil rights and various state laws. Each plaintiff has a distinct factual background on which their claims are predicated. The court will therefore discuss the facts pertaining to each plaintiff separately. Unless otherwise noted, the undersigned finds that the following facts are not disputed by the parties, or following the court's review of the evidence submitted there is insufficient evidence to establish a genuine dispute.*fn2

A. Plaintiff Nelson

On February 21, 2008, plaintiff Nelson was transferred from Tehama County Jail to Butte County Jail ("BCJ"). Def. CFMG's Mot. for Summ. J. against Pl. Nelson, Stmt. of Undisputed Facts in Supp. Thereof (Dckt. No. 27-2), UMF No. 1. While at Tehama County Jail, Nelson was prescribed Seroquel to treat his mental condition. Id., UMF No. 3. He arrived at BCJ without any prescription medication. Id., UMF Nos. 1-2. BCJ has contracted with defendant CFMG to provide all medical, psychological, and dental services to inmates housed at BCJ. County Defs.' Stmt. of Undisputed Facts (Dckt. No. 16), UMF No. 73. At BCJ Nelson was initially prescribed Elavil, but Seroquel was not continued. Id., UMF No. 5; Nelson Decl. (Dckt. No. 37) ¶ 2. On February 25, 2008, Nelson filed a grievance complaining that CFMG was not providing him his medication. Dckt. No. 16, UMF No. 25. CFMG responded to his grievance, informing him that he was being provided the medication he needed. Id., UMF No. 26. Nelson was evaluated by Dr. Baker, a physician employed by CFMG, on February 27, 2008. Dckt. No. 27-2, UMF No. 8. It was conveyed to Dr. Baker that Nelson had used illicit drugs in the past and had previously used Seroquel without a prescription. Id., UMF Nos. 9-10. Based on Nelson's previous drug use, Dr. Baker prescribed Thorazine and Elavil. Id., UMF No. 11.

On March 26, 2008, Nelson received a consult by a non-party physician, Dr. Uppal, at the Oroville Hospital. Id., UMF No. 19. Dr. Uppal ordered Nelson to cease taking Elavil and Thorazine and prescribed Zyprexa. Id., UMF No. 21. Dr. Uppal further instructed Nelson to follow up with the jail physician. Id. Upon Nelson's return to BCJ, Dr. Baker ordered Nelson to stop taking all medication pending further review. Id., UMF No. 22. Dr. Baker subsequently evaluated Nelson and concluded that he had anxiety relating to being in jail. Id., UMF No. 23.

On April 23, 2008, Nelson filed a second grievance complaining that one of the medications he was taking, Ibuprofen, was causing him stomach problems. Dckt. No. 16, UMF No. 27. CFMG informed him that he needed to submit a sick slip and he would then be provided an antacid to take with his Ibuprofen. Id., UMF No. 27. Nelson filed another grievance on August 11, 2008, complaining that CFMG was not conducting blood tests as ordered by the emergency room doctor at Oroville Hospital. Id., UMF No. 28. On August 13, 2008, Nelson was transferred to Metropolitan State Hospital. Id., UMF No. 29. Nelson subsequently returned to BCJ, and on April 15, 2009, Dr. Baker prescribed him Bupropion, Gabapentin and Seroquel. Dckt No. 27-2, UMF No. 27.

B. Plaintiff Simpson

Plaintiff Simpson was arrested on August 21, 2008. Dckt. No 16, UMF No. 32. Defendant Paley, a Butte County Sheriff's Deputy, observed Simpson driving a black truck with a female passenger. Id., UMF No. 33. Paley, knowing that Simpson was a parolee at large, initiated a vehicle stop. Id., UMF No. 34. After Simpson failed to stop, Paley gave chase. Id., UMF Nos. 34-35. Simpson eventually stopped at a residence where he switched vehicles, but his passenger remained with the black truck. Id., UMF No. 35. Paley stayed with the passenger and other deputies continued to pursue Simpson. Id., UMF Nos. 35-36.

Simpson eventually drove into a field where his vehicle became stuck. Id., UMF No. 37. Deal and other deputies approached Simpson's vehicle and witnessed Simpson attempting to get the vehicle to drive. Id. Deal ordered Simpson out of the vehicle, but he refused. Id., UMF No. 38. Simpson claims he did not hear any request to exit the vehicle. Simpson Decl. (Dckt. No. 46) ¶ 4. Deal broke the driver's side window and struck Simpson multiple times with a baton on the shoulder, neck, and head.*fn3 Id. at ¶ 4. Simpson was subsequently removed from the vehicle and handcuffed. Dckt. No. 16, UMF No. 41.

After his arrest, Simpson was taken to Orville Medical Center. Id., UMF No. 42. An emergency room physician examined Simpson and cleared him for incarceration at BCJ. Def. CFMG's Mot. Summ. J. against Pl. Simpson, Stmt. of Undisputed Facts in Supp. Thereof (Dckt. No. 10-2), UMF No. 2. Simpson contends, however, that a head injury that he sustained during his arrest was never examined. Dckt. No. 46 ¶¶ 6, 7. On October 13, 2008, while incarcerated at BCJ, Simpson complained that his hand hurt. Dckt. No. 10-2, UMF No. 3. He also complained that he had broken teeth and had lost a filling. Id., UMF No. 5. Simpson contends that these injuries were the result of his violent arrest. Dckt. No. 46 ¶¶ 6, 8. On October 21, 2008, CFMG prescribed Simpson Ibuprofen for his pain. Dckt. No. 10-2, UMF No. 4. His Ibuprofen prescription was renewed on October 21, 2008 and November 5, 2008. Id., UMF Nos. 6-7.

Simpson was seen by CFMG's dental services on November 5, 2008, and an extraction of a damaged tooth was recommended. Id., UMF No. 8. Simpson did not wish to have the tooth extracted; instead, Simpson wanted CFMG to repair his broken tooth and consequently no extraction was performed. Dckt. No. 46 ¶ 8. Simpson continued to complain of teeth and neck pain, and his Ibuprofen prescription was renewed on December 1, 2008. Dckt. No. 10-2, UMF No. 10. On December 19, 2008, Simpson was transferred from BCJ to High Desert State Prison. Id., UMF No. 11.

C. Plaintiff Brewer

On August 29, 2008, plaintiff Brewer was arrested and booked into BCJ. Dckt. No. 16, UMF Nos. 44-45. Prior to his arrival at BCJ, Brewer was treated at the Enloe Medical Center for various injuries, including a fractured heel requiring a cast. Def. CFMG's Mot. Summ. J. against Pl. Brewer, Stmt. of Undisputed Facts in Supp. Thereof (Dckt. No. 17-2), UMF Nos. 2, 5. Brewer was told by doctors that he needed to return to Enloe to have surgery on his leg, and he conveyed this information to CFMG. Brewer Decl. (Dckt. No. 39) ¶ 4.

When Brewer arrived at BCJ, he was provided a wheelchair and placed in a sobering cell. Dckt. No. 16, UMF No. 45. According to Brewer, defendants Morehead and Stockwell took his wheelchair away, "laughing since [he] could not stand on [his] feet."*fn4 Dckt. No. 39 ¶ 2.

On September 3, 2008, CFMG ordered a follow up orthopedic appointment. Dckt. No. 17-2, UMF No. 6. An appointment at Enloe Orthopedic Clinic was scheduled for November 17, 2008. Id., UMF No. 11. Brewer was not informed that an appointment had been scheduled, and he did not attend an appointment at Enloe Orthopedic Center on November 17, 2008. Dckt. No.39 ¶ 7. In December 2008, Brewer was seen by an orthopedist at Enloe. Dckt. No. 17-2, UMF No. 12. X-rays showed that Brewer's fracture had not yet healed and that he required an additional four weeks in his cast. Id. According to Brewer, his treating physician asked him "why it took so long to come back" to Enloe and informed him that surgery that would have enabled him to walk normally could no longer be performed. Dckt. No. 39 ¶ 5. Soon after this evaluation, Brewer was transferred from BCJ to High Desert State Prison. Dckt. No. 16, UMF No. 51.

D. Plaintiff Canfield

Plaintiff Canfield was incarcerated at High Desert State Prison. Canfield Decl. (Dckt. No. 44) ¶ 2. After being injured in an accident at the prison, he was transferred to BCJ. Id. In addition to the injuries sustained in the accident, Simpson has a stoma in his stomach with an ileostomy bag. Id. at ¶¶ 8, 13. When Canfield arrived at BCJ he was using crutches, but correctional staff removed his crutches, leaving Canfield relatively immobile. Id. at ¶ 2. On November 2, 2008, Canfield filed a grievance complaining that his crutches had not been returned. Dckt. No. 16, UMF No. 52. Although the grievance form indicates that Canfield's complaint was resolved at the first level of BCJ's grievance process, id, Canfield contends that the matter was never resolved to his satisfaction. Dckt. No. 44 ¶ 3. On December 16, 2008, Canfield filed a second grievance complaining that correctional staff had still not returned one of his crutches. Dckt. No. 16, UMF No. 53.

On November 17, 2008, defendants Narvais and Maffucci, both correctional officers at BCJ, were involved in an altercation with Canfield. Id., UMF Nos. 56-57. At the time of the altercation, Narvais was passing out food to inmates in a section of BCJ that was on lock down. Id., UMF Nos. 55-56. According to County Defendants, Canfield starting pushing past Narvais while stating that he would not be locked down again. Deems Decl. (Dckt. No. 28), Ex. D (incident report completed by Narvais). Maffucci assisted Narvais, and the two were able to take Canfield to the ground. Id. Additional officers helped place Canfield in restraints. Id. Under Canfield's version of the incident, he did not push or resist correctional officers, and Narvais and Maffucci "smashed" him to the ground. Dckt. No. 44 ¶ 4. Canfield was also "roughly handcuffed and dragged from the pod." Id.

On November 23, 2008, the section of BCJ in which Canfield was housed was placed on lock down in order for correctional officers to conduct a search of the suicide watch cells. Dckt. No. 16, UMF No. 61. After the search was completed, a correctional officer informed Canfield that he had ten minutes remaining on his dayroom time. Id., UMF No. 62. With his remaining time, Canfield took a shower. Id., UMF No. 63 After he showered, the correctional officer informed him that he needed to return to lock down. Id. According to County Defendants, Canfield refused to return to his cell and the correctional officer requested assistance. Id., UMF Nos. 64-65. Defendants Bentley, Demmers, Mell and another correctional officer arrived at the scene and ordered Canfield to return to his cell. Id., UMF Nos. 65-66. County Defendants contend that Canfield refused, and the officers subsequently took Canfield to the ground and placed him in restraints. Id. In Canfield's version of the incident, he merely complained that he was only provided a few minutes out of his cell. Dckt. No. 44 ¶¶ 5, 23, 26. The officers then purportedly beat him, choked him, and threatened to kill him. Id. at ¶ 23. And while plaintiff was already on his stomach, Bentley purportedly hit Canfield with a closed fist. Id. at ¶ 27.

On January 6, 2006, Canfield was involved in a confrontation with defendant Flicker. Dckt. No. 16, UMF No. 68. According to County Defendants, Flicker met with Canfield to discuss an administrative grievance Canfield had previously filed. Flicker Decl. (Dckt. No. 18) ¶ 29. Canfield had been using Flicker's pen and Flicker requested that his pen be returned. Id. Canfield refused and Flicker again ordered Canfield to give him the pen. Id. After another refusal, Flicker reached for the pen, but Canfield "raised his hand with the pen and took a bladed stance." Id. Flicker then struck Canfield in the chest and subdued Canfield until assistance arrived. Id.

In Canfield's version of the altercation, Canfield did not refuse to return the pen nor take an "aggressive step toward Lt. Flicker." Dckt. No. 44 ¶ 12. Although Canfield was not fighting or resisting, Flicker sat on him, crushing his ribs. Id.

II. Summary Judgment Standard

Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions 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). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (1986). ("[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.'"). 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. In such a circumstance, summary judgment must 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.

To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.

Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand,"[w]here 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). In that case, the court must grant summary judgment.

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.'" Id. If the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue. Celotex., 477 U.S. at 323. Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.

III. Discussion

A. County Defendants' Motion for Summary Judgment

Plaintiffs assert both federal constitutional claims and state law claims against County Defendants. County Defendants move for summary judgment on all of plaintiffs' claims.

I. Plaintiff Nelson's Claim Against County Defendants

Plaintiff Nelson alleges that County Defendants violated his civil rights by subjecting him to extensive abuse and harassment in retaliation for filing grievances. Dckt. No. 1 at 4. County Defendants argue that this claim is barred because plaintiff Nelson failed to exhaust available administrative remedies. Dckt. No. 32 at 10-11.

Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions [under section 1983 of this title], or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").

The Butte County Sheriff's Department has a three-level review process for inmate grievances. Flicker Decl. (Dckt. No. 18) ¶ 4. Prison officials first attempt to resolve the grievance informally. Flicker Decl., Ex. A at 16. If the complaint cannot be resolved informally, it is submitted to the Team Sergeant at the first level. Id. A grievance that cannot be resolved to the inmate's satisfaction at the first level advances to the second level, where it is reviewed by the Correctional Lieutenant. Id. at 17. If unresolved at the second level, an inmate may appeal his grievance to the Jail Commander. Id. Grievance forms that have completed all three levels will contain the signatures of the Team Sergeant in block one, the Correctional Lieutenant in block two, and the Jail Commander in block three. Dckt. No. 18 ¶ 2.

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:

[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.

Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."

Brown, 422 F.3dat 936-37 (citations omitted).

In support of their argument that Nelson failed to exhaust available administrative remedies, County Defendants submit the declaration of Flicker. Dckt. No. 18. Flicker declares that he is authorized to verify all records maintained by BCJ and that he has reviewed the complete BCJ file for Nelson. Id. at ¶¶ 2, 9. He further states that Nelson did not file a grievance regarding his claim that he was abused and harassed by correctional officers in retaliation for submitting grievances. Id. at ¶ 15. Nelson does not dispute that he never filed a grievance relating to his retaliation claim. Nelson Decl. (Dckt. No. 37) ¶ 17. Nelson, however, claims he failed to report abuse by correctional staff because he had witnessed other inmates being mistreated in retaliation for complaining.

The Court of Appeals for the Ninth Circuit has held that an inmate's failure to exhaust under the PLRA may be excused where "circumstances render administrative remedies effectively unavailable." Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). In Nunez, the court held that the plaintiff was excused from exhausting administrative remedies where the inmate took reasonable steps to exhaust his claim, but was precluded from exhausting his administrative remedies because of a mistake made by the warden. Id. at 1224. The court concluded that the warden's mistake rendered the plaintiff's administrative remedies effectively unavailable. Id. at 1226.

The Ninth Circuit also excused an inmate's failure to exhaust administrative remedies in Sapp v. Kimbrell, 623 F.3d 813 (9th Cir.2010). In that case the court held that improper screening of inmates' grievances renders administrative remedies effectively unavailable, thereby excusing inmates from complying with the PLRA's exhaustion requirement. Id. at 823.

In both opinions, the Ninth Circuit noted that other circuits have also held that inmates are not required to satisfy the exhaustion requirement when administrative remedies are effectively unavailable. Nunez, 591 F.3d at 1224; Sapp, 623 F.3d at 822. Noteworthy to the present matter, the Ninth Circuit observed that other circuits have found administrative remedies effectively unavailable where prison officials threatened inmates. Nunez, 591 F.3d at 1224; Sapp, 623 F.3d at 823; See Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006).

Nelson declares that he did not file a grievance or otherwise report abuse by correctional staff because he had witnessed prison officials retaliating against other inmates for complaining. Dckt. No. 37 ¶ 17. However, the fact that Nelson witnessed correctional staff abuse other inmates does not show that the grievance process was effectively unavailable. It is undisputed that Nelson submitted three different grievances while incarcerated at BCJ. Plaintiffs' Response to County Defs.' Stmt. of Undisputed Facts (Dckt. No. 63), UMF Nos. 25, 27, 28. Clearly Nelson was not deterred from using the grievance process at BCJ notwithstanding his assertion that he had witnessed correctional staff abusing other inmates for complaining. Contrary to Nelson's contention, the evidence establishes that he had access to BCJ's grievance process and had utilized the process on other occasions.

In sum, Nelson did not properly exhaust his administrative remedies. His failure to exhaust was not excused, as administrative remedies remained available. Accordingly, Nelson's claim that he was subjected to extensive abuse and harassment for complaining should be dismissed without prejudice.*fn5

ii. Plaintiff Simpson's Claims Against County Defendants

Plaintiff Simpson has four claims that he independently alleges against specific County Defendants, which include: 1) excessive force by defendants Deal, McNulty and Paley; 2) assault and battery by defendants Deal, McNulty and Paley; 3) violations of California Civil Code § 52.1 (Bane Act) by defendants McNulty and Paley; and 4) intentional infliction of emotional distress by defendants Deal, McNulty, and Paley.*fn6

a. Excessive Force

Plaintiff Simpson claims that his civil rights were violated by defendants Deal, McNulty, and Paley because they used excessive force in the course of arresting him.*fn7 Claims that law enforcement officers used excessive force in performing an arrest are analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). Under this standard a court must decide "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." Id. at 397. This determination "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interest at stake." Id. at 396-97 (internal quotation marks omitted). The reasonableness of an officer's conduct "must be judged from the perspective of a reasonable officer on scene, rather than with the 20/20 vision of hindsight." Id. at 396.

The reasonableness determination involves a three step analysis. First, a court "must assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted." Glenn v. Washington County, - F.3d -, 2011 WL 6760348, at *5 (9th Cir. Dec. 27, 2011)(internal quotation marks omitted). Second, a court evaluates the government's interest in using force. Id. This requires "assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers' or public's safety; and (3) whether the suspect was resisting arrest or attempting to escape." Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). Finally, the gravity of the intrusion must be balanced against the government's need for the intrusion. Glenn, 2011 WL 6760348, at *5. "Because the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom . . . summary judgment . . . in excessive force cases should be granted sparingly." Id.

Viewing the evidence in the light most favorable to Simpson, a reasonable jury could find that excessive force was used in the course of his arrest. Though indisputable that Simpson ran from deputies, Dckt. No. 63, UMF No. 33, Simpson's evidence shows that he was not fleeing at the time he was beaten by deputies. Dckt. No. 46 ¶ 4. Rather, it shows that after Simpson's vehicle was stopped, Deal broke the driver's side window of the vehicle and that Simpson's reaction was to shield his face from the glass. Id. According to Simpson, he was frozen in fear and did not threaten the officers or further resist any attempt to arrest him. Id. Simpson declares that Deal stated that he was glad Simpson ran because he had "just got these new batons and want[ed] to try them out." Id. Simpson further declares that Deal then struck him with a baton numerous times in the shoulder, head and neck. Id. at ¶¶ 4-6. Simpson submits evidence that as a result of this beating, he sustained broken teeth and suffered memory loss, inability to concentrate, headaches and difficulty sleeping. Id. at ¶¶ 8, 10.

This evidence is sufficient to create a genuine dispute as to whether Deal used excessive force against Simpson. A rational trier of fact could conclude from Simpson's evidence that Simpson did not threaten deputies or further resist arrest, and that once Simpson's vehicle was stopped, he posed, at most, a minimal threat to public and officer safety. Under these circumstances, a jury could find that multiple baton strikes to the shoulder, head, and neck were unnecessary to arrest Simpson. Accordingly, summary judgment must be denied on this claim.

There is no evidence, however, that McNulty and Paley used excessive force in apprehending Simpson. Simpson concedes that Paley was not present at the time of his arrest. Id. at ¶ 2. As for McNulty, there is no evidence he used excessive force or was even present at the scene when Simpson was arrested.*fn8 Simpson has failed to establish a triable issue that McNulty and Paley used excessive force. Thus, McNulty and Paley are entitled to summary judgment on this claim.

b. Assault and Battery Claims

Plaintiff Simpson's cause of action for assault and battery against defendants Deal, McNulty and Paley is predicated on the events surrounding his arrest on August 21, 2008. County Defendants argue that Deal is entitled to summary judgment because the force utilized in making the arrest was reasonable. Dckt. No. 32 at 14. County Defendants contend that McNulty and Paley are entitled to judgment as a matter of law on this claim because there is no evidence that they were present when plaintiff was arrested. County Defs.' Reply to Pls.' Opp'n (Dckt. No. 69) at 4.

Under California law, battery is defined as the "willful and unlawful use of force or violence upon the person of another." Cal. Penal Code § 242. To succeed on a civil claim for battery, the plaintiff must establish: "(1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff's person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff." Brown v. Ransweiler, 171 Cal. App. 4th 516, 526-27 (2009). However, when a battery claim is brought against a police officer, plaintiff must show that the defendant officer used excessive force in effecting the arrest. Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1273 (1998). The determination of whether excessive force was used is analyzed under the Fourth Amendment reasonableness standard. Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1102 (2004).

As discussed above, there exists a genuine issue as to whether the force used by Deal was excessive under the circumstances. Summary ...

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