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Levon Graham v. D.L. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 23, 2012

LEVON GRAHAM, PLAINTIFF,
v.
D.L. RUNNELS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction and Summary

Plaintiff, a state prisoner proceeding with appointed counsel, seeks relief pursuant to 42 U.S.C. §1983. On May 24, 2012, a motion for summary judgment, filed on March 29, 2012, brought by defendants T. Kopec and A. Martin, came on for hearing. Plaintiff was represented by Brian Berry of Latham & Watkins, LLP, accompanied by colleagues Brendan Kelleher and Genevieve Jenkins; Deputy Attorney General Jaime Ganson appeared on behalf of defendants.

As seen below, a total of seven claims are germane for this summary judgment. However, only three give real pause before ultimate deferral for trial, and one claim (defendant Kopec) results in summary judgment. This concededly tardy litigation can only be saved through equitable tolling -- plaintiff's alleged mental problems. Although the outcome is doubtful for plaintiff's assertion, the matter must be placed before the trier of fact. Plaintiff's administrative complaint was exhausted at the second level. In any event, plaintiff's medical condition might well indicate an equitable exception to the third level sua sponte finding that plaintiff's initial grievance was made out of time; if not exhausted at the second level, this too must await trial. On the merits of excessive force, two conflicting inferential findings are at play: defendant's assertion of mistake in utilizing a weapon/ammunition not authorized for plaintiff's cell extraction, and hence an innocent state of mind; plaintiff's testimony that the user of the unauthorized weapon/ammunition had threatened injury to plaintiff earlier on the day of the incident, making the assertion of mistake, as opposed to maliciousness, less likely. The determination of the correct inference must certainly await trial. Finally, Kopec's liability, as an off scene official-in-charge, can only be found if plaintiff's speculation heaped upon speculation can defeat summary judgment, and it cannot.

Issues on Motion for Summary Judgment

Defendants raise the following grounds in their motion for summary judgment on the following grounds: 1) the action was not filed within the limitations period; 2) the action is barred by laches; 3) defendant Martin's use of the 40B stinger round was not intentional and did not constitute excessive force; 4) defendant Kopec had no supervisory liability for use of the 40B stinger round, and; 5) plaintiff failed to exhaust administrative remedies; 6) Heck v. Humphrey bars this action because the excessive force claim would undermine plaintiff's credit forfeiture resulting from disciplinary action against him; 7) defendants are entitled to qualified immunity. Summary Judgment Legal Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to 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, 106 S. Ct. 2548, 2553 (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, 106 S. Ct. at 2552. "[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, 106 S. Ct. at 2553.

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, 106 S. Ct. 1348, 1356 (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, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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, 106 S. Ct. at 1356 (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, 106 S. Ct. at 1356. 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). Thus, 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, 106 S. Ct. at 1356 (citation omitted).

Finally, the court is mindful "that at the summary judgment stage the judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S. Ct. at 2511. Thus, it is not for this court to make a credibility determination on a motion for summary judgment. Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005)("[I]t is axiomatic that disputes about material facts and credibility determinations must be resolved at trial, not on summary judgment.") [Internal citation omitted].

Undisputed Material Facts*fn1

In a nutshell, the case involves the firing of a "40B Stinger" round*fn2 at plaintiff during the process of a cell extraction. Use of the device was concededly unauthorized for the situation facing the Corrections officers.

The following of defendants' undisputed material facts are in fact undisputed and have been admitted by plaintiff with any caveats by plaintiff footnoted where applicable. 1. On December 20, 2001, plaintiff Levon Graham was a state prison inmate incarcerated at High Desert State Prison (HDSP). 2. Plaintiff [on Dec. 20, 2001] was housed in administrative segregation (Ad Seg), where he was single-celled. 3. Defendant A. Martin was employed as a sergeant at HDSP. 4. Defendant T. Kopec was employed as Acting Facility Captain at HDSP.

5. On Dec. 20, 2001, plaintiff broke the fire suppression sprinkler in his cell. 9. Defendant Martin instructed plaintiff to submit to handcuffs and exit the cell so that maintenance staff could repair the sprinkler head. 10. Plaintiff refused to comply with defendant Martin's order. 11. A tactical extraction team was authorized to remove plaintiff from his cell. 14. Defendant Kopec did not have the authority to authorize use of a 40B stinger round. 15. Launchers and munitions were stored in the control booth. 17. It was common practice for defendant Martin to communicate through the window in the control booth. 18. Defendant Martin yelled to the control booth operator, Officer Spidle, and Spidle came to the control booth window. 20.

Defendant Martin had worked with Officer Spidle before, did not know him to be careless, had no reason to believe he was not fully competent, and trusted him. 22. Officer Spidle handed defendant Martin a 40 mm launcher and a handful of rounds through the "window" in the floor of the control booth. 23. Officer Spidle did not indicate to defendant Martin that he had been unable to hear which rounds he requested, or that he was providing defendant Martin any rounds other than the T-21 blast dispersion rounds. 28. The 40 mm launcher is a weapon that was used to deploy both T-21 blast dispersion rounds and 40B stinger rounds. 34. It was 13 feet and 1/4 inch from the food port to the back of plaintiff's cell. 35. On Dec. 20, 2001, plaintiff was extracted from his cell. 38. Defendant Martin's direct supervisor, Lieutenant Wright, was present during the extraction. 41. It was committee day. 42. On committee day, the warden, chief deputy warden, and associate wardens are in the Ad Seg Unit to evaluate inmates' cases.*fn3

43. Committee meetings are held in the dining hall attached to the building. 44. Committee day is busy because there is a lot of movement of inmates. The inmates need to be fed and the inmates to be seen at committee must be searched, clothed, and brought to holding cells. 46. The cell extraction could be observed by someone standing just a few steps outside the dining hall. 47. Plaintiff was issued the Calculated Use of Force Advisement, ordered to submit to handcuffs and exit the cell, instructed that if he failed to obey the order he would be physically removed from the cell, and warned that physical force may be used to facilitate his removal from the cell. 48. Plaintiff did not comply. 49. Plaintiff wrapped himself in a blanket and got under a table at the back of the cell. 50. It was determined that force was necessary to remove plaintiff from the cell. 52. Aiming the launcher upward was made difficult by the steel food port door, which is hinged and fold[s] down and outward from the bottom, so that it remains perpendicular to the base of the food port when open, making it difficult to aim the launcher at an upward angle. 54. Using the 40mm launcher, defendant Martin deployed one round into plaintiff's cell.

62. On Dec. 20, 2001, plaintiff was extracted from his cell. 64. The projectiles released from a stinger round that ricochet, as opposed to a direct hit, have less velocity. 65. One of the cornrow braids in plaintiff's hair diffused the impact, and the projectile did not break the skin. 67. Plaintiff was then instructed to submit to handcuffs, but refused. 68. Plaintiff failed to comply with multiple additional orders to submit to handcuffs and exit the cell. 69. Oleoresin Capsicum was twice discharged into the cell. 70. Plaintiff did not immediately exit the cell. 71. Nearly ten minutes after the 40B stinger round was deployed, plaintiff submitted to handcuffs at the front of the cell. 73. During an interview that same day, plaintiff conceded that the treatment [MTA] Barton provided was "satisfactory." 75. Defendant Kopec was not responsible for defendant Martin's training. 78. Sergeant Park, who was the Armory Sergeant at the prison in 2001, assisted in the investigation of defendant Martin's use of the 40B stinger round during plaintiff's cell extraction and determined that, although defendant Martin's use of the round was not in compliance with CDCR policy or procedure, "his in-cell use of the 40B stinger round met the minimum factory specifications, including the minimum distance required when deploying the round" and "constituted less-lethal force." 79. Plaintiff received disciplinary rule violation report ASU-01-12-0026, under CAL. CODE REGS. tit.xv, § 3005(b), for delaying a correctional officer in the performance of his duties, for his conduct on December 20, 2001. 80. Based on a preponderance of the evidence presented at the hearing, plaintiff was found guilty of delaying a correctional officer in the performance of his duties. 83. The only grievance plaintiff filed, which could be found to address his claim that excessive force was used during his December 20, 2001, cell extraction, is HDSP-S-02-00689. 84. Grievance HDSP-S-02-00689 was submitted on April 4, 2002. 87. On December 7, 2002, plaintiff was released on parole. 88. On July 26, 2002, plaintiff filed case no. 2:02-cv-01592 ("previous action"). 89. The previous action involved the same claims as this action. 90. The previous action was dismissed without prejudice on March 16, 2004, before the Court effected service. 91. On Sept. 29, 2006, plaintiff indicated he was refiling this action. 92. Plaintiff did not file this action until Sept. 17, 2007.

93. The complaint originally filed in this action contains a single paragraph containing the allegations underlying plaintiff's Eighth Amendment claim. 95. Plaintiff was arrested for multiple felony state law violations committed on May 13, 2003. 97. Plaintiff was admitted, on Sept. 15, 2003, to Patton State Hospital. 98. Patton State Hospital staff discharged plaintiff back to court on Nov. 10, 2003. 99. On Feb. 19, 2004, plaintiff's mental competence was again challenged. 100. On Sept. 13, 2004, plaintiff again was admitted to Patton State Hospital. 101. Upon his admission, a Patton psychiatrist observed that plaintiff "may be malingering," noting that plaintiff "mentally appears alert, although he presents himself as some[body] who is hallucinating and is delusional." (Medical Records at Med. -011).*fn4 102. The medical notes state: "There seems to be a selective loss for recent and remote events depending on what information he wants to be told or provide." (Medical Records at Med-009).*fn5 103. The medical notes indicate that it seemed plaintiff could fully understand the questions asked of him. (Medical Records at Med.-009).*fn6 104. The medical notes indicate that although plaintiff "expressed his delusions and hallucinations," he also "was observed to be interacting very well with other patients," and "spoke logically with good association of ideas." (Medical Records at Med.-005).*fn7

105. On November 8, 2004, Graham again was determined to be competent and was discharged back to court. (Medical Records at Med.-004, 005). 106. On July 13, 2005, Graham's challenge to the certificate of mental competence was held in the Los Angeles criminal court. 107. The court denied the challenge to mental competency, and expressly held that plaintiff "IS EXAGGERATING AND FAKING HIS SYMPTOMS TO AVOID CRIMINAL RESPONSIBILITY." Dkt. #113 at 68-69. (Req. for Jud. Not. Ex. A at 53-54). 108. Plaintiff was convicted on September 7, 2005. 109. Neither defendant Martin, defendant Kopec, nor non-party Lieutenant Wright (defendant Martin's direct supervisor during the extraction) can recall whether they knew, at the time of the extraction, of plaintiff's assault on a correctional staff person the day before the cell extraction. 110. Wright has no current recollection of plaintiff's assault on a correctional staff person the day before the cell extraction, but was the hearing officer for the disciplinary charge concerning the violation. 112. Officer Spidle, the control booth operator who handed the munitions to defendant Martin no longer recalls: (1) why the cell extraction was ordered; (2) how he found out about the extraction; (2) any of the events leading up to the extraction (other than that he gave defendant Martin the munitions); (3) how many or which type of munitions he provided; (4) how many times he reached through the control booth window to hand the munitions down; (5) whether the writing on the side of the rounds had rubbed off; or (6) whether he told defendant Martin that he had been unable to hear which munitions defendant Martin requested and therefore was providing "a little of everything." 113. Even after reviewing his report regarding the incident, Spidle could not recall many of the observations he made during and immediately following the extraction. 114. Wright cannot recall why they decided to use the T-21 round or the launcher for the extraction, whether he watched defendant Martin load the launcher, whether he examined the spent 40B stinger round, whether he was personally involved in any investigation of defendant Martin's use of the 40B stinger, or whether he heard the disciplinary rules violation reports resulting from plaintiff's conduct that led to the extraction. 115. Officer Campa, could not recall discovering the broken sprinkler in plaintiff's cell. 116. Campa, who participated in the extraction and was present when the rounds were deployed, cannot recall whether he saw defendant Martin load or discharge the launcher, or where plaintiff was located in the cell during the extraction. 117. When asked about the cell extraction procedures in effect in 2001, Campa responded, "Like I said 2001 I can't remember that far, honestly . . ." (Campa Dep. 79:20-80:11.) 118. After reviewing his report from the cell extraction, Campa still could not recall being present when the rounds were deployed, or the reason for the extraction. 122. At deposition, plaintiff no longer could recall whether the medical personnel he spoke to before the extraction was a "MTA, psych tech, psychiatrist, psychologist, anything." (Pl.'s Dep. 86:21-25.) 125. At deposition, plaintiff no longer could recall filing the previous lawsuit regarding his extraction. (Pl.'s Dep. 26:3-7). Dkt. # 107, pp. 43-6; dkt. # 13, 38-72.

The following of plaintiff's undisputed facts are expressly undisputed by defendants with any caveat noted. PUF 3. Operational Procedure 118 concerning cell extractions was in effect at HDSP on Dec. 20, 2001. PUF 6. In December 2001, OP 118 did not permit the use of a 40mm launcher in cell extractions. Dkt # 116-4, p. 41, citing Ex. 12 (OP 118 at 4). Although defendants admit this, they observe that "this fact is inherently misleading" because OP 118 neither addresses or disallows use of the 40mm launcher. Rsp to PUF 6, citing id., and Declaration of Bloem.*fn8 PUF 9. Defendant Captain Kopec did not physically view plaintiff's Dec. 20, 2001 cell extraction. PUF 12. MTA Barton's examination of plaintiff after the Dec. 20, 2001 cell extraction lasted less than one minute.

Parties' Requests for Judicial Notice

In support of their motion for summary judgment, defendants ask the court to take judicial notice of People v. Graham, Los Angeles Superior Court, Case No. LA-043100-01 (Exhibit A) and Graham v. Runnels, No. 2: 02-cv-1592 FCD PAN (E.D. Cal. ) and docket # 16 (Ex. B) (judgment entered on dismissal without prejudice of that case on March 16, 2004). Request at docket # 98. Further, defendants ask the court to take judicial notice of the following facts in the state court case: 1) plaintiff was arrested for multiple felony state law violations committed on May 13, 2003 (Ex. A at 0024); 2) plaintiff's mental competence was challenged on February 19, 2004 (Ex. A at 0087); 3) plaintiff's challenge to the certificate of mental competence was held in Los Angeles criminal court (Ex. at 53-54); 4) the court denied the mental competency challenge, expressly holding that plaintiff "IS EXAGGERATING AND FAKING HIS SYMPTOMS TO AVOID CRIMINAL RESPONSIBILTY" (Ex. A at 53-54); 5) plaintiff was convicted on September 7, 2005 (Ex. A at 69-70). Id.

As to Graham v. Runnels, No. 2:02-cv-1592, filed on July 26, 2002, and dismissed, on March 16, 2004, for failure to prosecute, defendants seek judicial notice of the case, wherein they contend the same claims were raised as those at issue herein. Docket # 98. In particular, defendants seek judicial notice of plaintiff's representation in that case to the court on September 29, 2006, that he was "in the process of refiling the case," arguing that these facts are relevant to the determination as to whether the statute was tolled and this action was filed timely. Id.

In support of his opposition to the motion for summary judgment, plaintiff, in turn, seeks judicial notice of the following docket entries of Graham v. Runnels, No. 2:02-cv-01592 FCD PAN: docket # 13, # 14 and # 15. Docket # 105, Exs. A, B & C. These docket entries include a show cause order, filed on Nov. 26, 2003, noting that the court had found plaintiff had stated a colorable claim against defendant Martin, also observing that plaintiff had failed to submit the requisite papers for service of the defendant. 2:02-cv-1592, docket # 13. Plaintiff was given additional time to respond. Id. In docket # 14 of that case, it was recommended, by filing dated Jan. 29. 2004, that the action be dismissed without prejudice, the court finding therein that defendant had not been served pursuant to Fed. R. Civ. P. 4(m) and that plaintiff had failed to offer any explanation for failing to submit papers for service. In docket # 15 of 2:02-cv-01592, by order filed on March 16, 2004, the findings and recommendations at docket # 14 were adopted in full and the case dismissed without prejudice.

Under Fed. R. Evid. 201(b), a court may take judicial notice of a fact not subject to reasonable dispute, either because the fact is generally known within the territorial jurisdiction of the trial court or because the fact is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned. Pursuant to Fed. R. Evid. 201(c), a court may, on its own, take judicial notice of an adjudicative fact or "must take judicial notice if a party requests it and the court is supplied with the necessary information."

While documents that are public records may be judicially noticed for the purpose of showing the occurrence of a judicial proceeding that a particular document was filed in a separate court case, or that a specific fact was found, judicial notice for the truth of the findings of facts from another case is not appropriate. Wyatt v. Terhune, 315 F.3d 1108, 1114 n. 5 (9th Cir. 2003) ('[f]actual findings in one case ordinarily not admissible for their truth in another case through judicial notice"); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (while court may take judicial notice of "matters of public record," it may not take judicial notice of any fact "subject to reasonable dispute"); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)

("a court may take notice of another court's order only for the limited purpose of recognizing the 'judicial act' that the order represents or the subject matter of the litigation"). The court will grant both parties requests' for judicial notice of the documents submitted on the basis that a court may take judicial notice of court records, Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980), and not for the truth of the matter therein asserted.

Statute of Limitations

On December 7, 2002, plaintiff was released on parole. On July 26, 2002, plaintiff filed case no. 2:02-cv-01592 ("previous action"). The previous action, which involved the same claims as this action, was dismissed without prejudice on March 16, 2004, before the Court effected service. On Sept. 29, 2006, plaintiff indicated he was refiling this action; however, plaintiff did not file this action until Sept. 17, 2007. The complaint originally filed in this action contains a single paragraph containing the allegations underlying plaintiff's Eighth Amendment claim.

Evidently paroled after the 2002 incident, plaintiff was arrested for multiple felony state law violations committed on May 13, 2003. Plaintiff was admitted, on Sept. 15, 2003, to Patton State Hospital. Patton State Hospital staff discharged plaintiff back to court on Nov. 10, 2003. On Feb. 19, 2004, plaintiff's mental competence was again challenged. On Sept. 13, 2004, plaintiff again was admitted to Patton State Hospital. Upon his admission, a Patton psychiatrist observed that plaintiff "may be malingering," noting that plaintiff "mentally appears alert, although he presents himself as someone who is hallucinating and is delusional." (Medical Records at Med. -011).*fn9 The medical notes state: "There seems to be a selective loss for recent and remote events depending on what information he wants to be told or provide." (Medical Records at Med-009).*fn10 The medical notes indicate that it seemed plaintiff could fully understand the questions asked of him. (Medical Records at Med.-009).*fn11 The medical notes indicate that although plaintiff "expressed his delusions and hallucinations," he also "was observed to be interacting very well with other patients," and "spoke logically with good association of ideas." (Medical Records at Med.-005).*fn12 On November 8, 2004, plaintiff again was determined to be competent and was discharged back to court. (Medical Records at Med.-004, 005). On July 13, 2005, plaintiff's challenge to the certificate of mental competence was held in the Los Angeles criminal court. The court denied the challenge to mental competency, and expressly held that that plaintiff "IS EXAGGERATING AND FAKING HIS SYMPTOMS TO AVOID CRIMINAL RESPONSIBILITY." Dkt. # 13 at 68-69. (Req. for Jud. Not. Ex. A at 53-54). Plaintiff was convicted on September 7, 2005.

The undersigned does not elect to re-litigate this ground raised by defendants in a successive motion, seeking once again for the court to find this action time-barred.

In an order filed on September 14, 2009, defendants' motion to dismiss the complaint as time-barred was denied. In the August 4, 2009, findings and recommendations adopted in full by that order, the court found that plaintiff had raised a genuine issue of material fact as to whether he meets the requirements for equitable tolling (defendants' motion to dismiss having been converted, by plaintiff's reliance on equitable tolling, to a motion for summary judgment).

Thus, whether construed as pursuant to the statute for a mental disability or under a judge-made equitable tolling doctrine, what must be calculated is the period of time during which plaintiff can show he was mentally incompetent and could not file timely, which becomes important to determine when the statute of limitations may have stopped running. If, for example, plaintiff can prove that he was mentally incompetent for two entire years before December 20, 2005, the end of the statutory limitations period as maintained by defendants, then plaintiff's September 17, 2007, filing would be timely. Plaintiff has provided at least prima facie evidence of mental incompetence for the period of time from July 17, 2003, until March 1, 2005, raising a triable issue of fact for a jury to determine whether plaintiff is entitled either to tolling under the applicable statute or to equitable tolling.

Findings and Recommendations, filed Aug. 4, 2009, p. 13 (adopted on Sept. 14, 2009).

Defendants argue that they were not afforded an opportunity to respond once the court found that defendants' prior motion to dismiss had been coverted into one for summary judgment in light of plaintiff pro se's having provided prima facie evidence of mental incompetence for the period from July 17, 2003, until March 1, 2005, raising a triable issue of fact for a jury to determine plaintiff's entitlement to tolling under Cal. Code Civ. P. § 352(a) or to equitable tolling. Defendants also contend that plaintiff did not fully disclose all the evidence for the period at issue, thus this court was misled.

The undersigned is not persuaded. Unless the court affirmatively excludes extra-record material set forth in an opposition to a motion, the motion to dismiss "must" be transformed into a motion for summary judgment. Fed. R.Civ. P. 12 (d). Defendants were certainly on notice that when plaintiff submitted his factual material, they were required to respond in kind within the reply, unless the court had ruled otherwise. At the very least, defendant should have submitted an inquiry, request for extension for the reply, or the like if they had any doubts about the need to reply with factual information. Moreover, defendants did not file objections to the findings and recommendations recommending denial of the motion to dismiss in which they could have requested to add the factual material. Further, defendants did not seek reconsideration of the order once the findings and recommendations were adopted. Finally, within the now-vacated initial motion for summary judgment brought while plaintiff was still proceeding pro se, the statute of limitations was not even raised as a ground for summary judgment.

Law of the case, while not an inexorable preclusion of successive motions, serves an important principle in litigation which prevent endless motions refining and re-refining one's theories or evidentiary submissions. United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998). The doctrine applies to the decision of a higher court as well as decisions of the same court. Id. Absent clear error or changed circumstances, such as a change in the law, the decision should not be changed. United States v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir. 1980). As explained above, the circumstances surrounding defendants' presentation of the first motion regarding the statute of limitations does not weigh in favor of giving defendants a second motion on the subject.*fn13

Nevertheless, the failure to obtain a summary judgment on the issue, after the initial motion to dismiss was converted to a motion for summary judgment by operation of law, does not preclude presentation of the issue as one for the trier of fact to decide. The first ruling was simply a finding that material issues of fact existed which precluded judgment as a matter of law. The statute of limitations defense will ultimately and dispositively be made by the trier of fact at trial.

Laches

As plaintiff notes, defendants failed to plead laches in their answer and also that laches is an equitable defense where plaintiff herein seeks only money damages.

Federal and Montana law recognize that laches is an equitable defense to a civil action. Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 987 (9th Cir.2004); Hunter v. Rosebud County, 240 Mont. 194, 783 P.2d 927, 930 (1989). An action like Floyd's, alleging a breach of contract, however, is an action at law. See State ex rel. Butte Youth Serv. Ctr. v. Murray, 170 Mont. 171, 551 P.2d 1017, 1019 (1976) (distinguishing between remedy at law for breach of contract and remedy in equity for specific performance). Therefore the doctrine of laches poses no barrier to Floyd's claim. See Wyler Summit P'ship v. Turner Broad. Sys., 235 F.3d 1184, 1193-94 (9th Cir.2000) (holding that breach of contract claim seeking money damages was an action at law that precluded defense of laches); Miller v. Maxwell's Int'l, 991 F.2d 583, 586 (9th Cir.1993) (holding that the doctrine of laches is inapplicable when statute of limitations governs an action)."

Floyd v. Oliverson, 389 Fed.Appx. 641unpub (9th Cir. 2010).*fn14 Plaintiff cites Ivani Contracting Corp. v. City of New York, 103 F.3d 257 (2d Cir. 1997) (reversing dismissal based on laches because complaint sought damages under § 1983). Dkt # 113, p. 32. In that case, the Second Circuit stated that the Supreme Court had long determined that "'[l]aches within the term of the statute of limitations is no defense at law'" (at 259) and that laches could not bar an action "otherwise timely filed under § 1983's three-year limitations period as borrowed from analogous state law." Ivani at 262. Defendants argue that plaintiff's reliance on the Second Circuit case ignores Ninth Circuit precedent finding that laches can bar even a claim for damages that is timely under the statute, citing two Ninth Circuit cases finding laches to be a defense to claims of copyright infringement, Danjaq LLC v. Sony Corp., 263 F.3d 942, 949, 954, 963 (9th Cir. 2001) and to Lanham Act claims for money damages, Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002). Reply, p. 20. However, in both of these cases, laches is recognized to be an equitable defense.

Laches, an equitable defense, is distinct from the statute of limitations, a creature of law. E.g., Jackson, 25 F.3d at 888. Statutes of limitation generally are limited to actions at law and therefore inapplicable to equitable causes of action. E.g., Patton v. Bearden, 8 F.3d 343, 347 (6th Cir.1993). Laches serves as the counterpart to the statute of limitations, barring untimely equitable causes of action. E.g., Jackson, 25 F.3d at 888.

Jarrow Formulas, 304 F.3d at 835 (emphasis added).

The laches argument fails in this § 1983 context.

Exhaustion of Administrative Remedies The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." Inmates seeking injunctive relief must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). In Booth

v. Churner, 532 U.S. 731,741, 121 S. Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Therefore, inmates seeking money damages must also completely exhaust their administrative remedies. Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (inmates seeking money damages are required to exhaust administrative remedies even where the grievance process does not permit awards of money damages). The United States Supreme Court has held that exhaustion of administrative remedies under the PLRA requires that the prisoner complete the administrative review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). Thus, the PLRA exhaustion requirement can only be satisfied by "proper exhaustion of administrative remedies....," which means that a prisoner cannot satisfy the requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, supra, at 84, 126 S. Ct. at 2382. Defendants, however, "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).

It is undisputed that the only grievance plaintiff filed which could be found to address his claim that excessive force was used during his December 20, 2001, cell extraction, is HDSP-S-02-00689, which was submitted on April 4, 2002. It is also undisputed that the grievance does not name defendant Kopec.

Defendants contend that plaintiff's administrative grievance was untimely because it was filed beyond the fifteen working day limit to file an inmate grievance, which would have been by January 10, 2002, given the Dec. 20, 2001, date of the cell extraction. MSJ, p. 34, citing, inter alia, CAL. CODE REGS. tit.xv, §§ 3084.2(c), 3084.6(c). Plaintiff avers that he was on crisis bed status at HDSP from Dec. 20, 2001 through Jan. 9, 2002, and again before March 12, 2002, as well as on crisis bed status at SVSP from March 12, 2002 through March 25, 2002, and implicates a lack of access to writing implements, paper, and the law library while plaintiff was on crisis bed status, while defendants object that these statements framed as undisputed by plaintiff are, inter alia, irrelevant because plaintiff was able to file grievance by April of 2002. Opp., docket # 113, p. 73, citing plaintiff's declaration at ¶¶ 27-, 28, 31 and Exs. 9, 15-16, 18; Reply # 116-4, p. 43. Of course, however, the statements by plaintiff are highly relevant to the question of whether plaintiff could have filed an inmate grievance within the 15-day time limit for which the grievance was rejected at the third level. See below. In their reply, defendants cite an additional grievance, SVSP-A-02-01108, plaintiff submitted protesting his ad seg placement at Salinas Valley State Prison, SVSP-A-02-01108, on February 28, 2002, and re-submitted on March 10, 2002, showing he had access to the grievance system before April of 2002. Reply, docket # 116-4, p. 98, citing custodian of records dec. ¶ 4 (docket # 109) & Ex. A. The court observes that it appears that plaintiff's first attempt at filing this grievance resulted in its being rejected (on March 4, 2002) for his having failed to complete the form adequately or for having failed to attach the appropriate documents and for his failure to sign and date the appropriate section. Docket # 109-1, p. 10. Plaintiff had been returned to HDSP prior to the late first level appeal response in the form of a partial grant on May 10, 2002, by SVSP, the partial grant being so construed because plaintiff's housing issues were to be determined at HDSP. Id., at 4-5.

The grievance at issue herein, HDSP-S-02-00689, wherein plaintiff complained that he suffered migraines, blurry vision, suicidal thoughts, dizziness, memory loss and periodic blackouts as a result of defendant Martin's discharge of the 40B stinger that hit him on the left side of his head was bypassed to the second level and received a substantive response, in the form of being "partially granted." MSJ, Ex. I, Declaration of J. Delaney (CDCR SVSP litigation coordinator & Delaney Ex. A); Reply, docket # 116, p. 90-92. Defendants include a copy of the June 4, 2002, letter from the Inmate Appeals Branch (or third level) stating that plaintiff's documents were being returned to him for his failure to have filed the appeal within 15 days of the incident. MSJ, Ex. O, citing docket # 1 (plaintiff's original but not operative complaint which included a copy of the June, 4, 2002 letter, as well as the other appeal documents for this grievance); Reply, at 89. Defendants include, Ex. H to their MSJ, Declaration of D. Foston (CDCR Chief of Inmate Appeals Branch), ¶¶ 6-7, attesting to the grievance's not having been accepted for review at the Director's level because it was screened out as untimely because it was not filed within fifteen days of the incident. Plaintiff bases his contention that defendants cannot meet their burden to show that his administrative appeal did not reach the Director's level of review on his objection to the supporting evidence as inadmissible. Opp., p. 33. Plaintiff objects that the screen-out letter is not authenticated, citing Fed. R. Evid. 901(a); that declarant Foston has improperly speculated as to the basis for the appeal's not having been accepted at the Director's level by a purported review of CDCR files, but does not attest to CDCR's practices and procedures in the maintenance of such records such that such a conclusion could be properly drawn. Id. at 78. Plaintiff also objects that the best evidence rule (Fed. R. Evid. 1002) requires the submission of an original writing to prove its content whereas defendants seek to use the Foston Dec. to both prove the content of the writing and the basis of the screen out without attaching the document itself. Id. at 77. As to this point, defendants make cogent points in contending that the screen-out letter was attached to the verified original complaint, that the letter itself supplies the reasons for the return of the appeal, and that defendant Foston's declaration is offered not to prove the contents of the letter but the information contained in the files of the Inmate Appeals Branch. Reply, docket # 116-4, pp. 16-17.

Plaintiff argues that acceptance of the grievance at the second level along with partially granting it, resulted in waiver by the prison to reject his appeal at the Director's level, citing several out-of-circuit cases in support of this proposition, which defendants aver contradict the controlling authority. Opp., p. 35; Reply, p. 60. Defendants cite the generally, controlling legal authority of Woodford v. Ngo, 548 U.S. at 90-91, 126 S. Ct. 2378, describing "proper exhaustion" as "compliance with an agency's [i.e., a prison's] deadlines and other critical procedural rules" and Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910 (2007), specifying that "it is the prison requirements, not the PLRA, that define the boundaries of proper exhaustion." Defendants point out that two of the three cases cited by plaintiff in favor of finding a waiver, Patel v. Fleming, 415 F.3d 1105, 1111 (10th Cir. 2005), and Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), predate the ruling of Woodford v. Ngo and contends that the discussion in the third, Ellison v. N.H. Dep't. of Corr., 2009 WL 424535 at *4 n. 6 (D.N.H. February 19, 2009), regarding the question of whether an institution has waived its right to argue a failure to exhaust when a late-filed grievance has been considered by the prison on the merits, is only dicta. Reply, pp. 60-61. Defendants also argue that the second level review was partially granted only to the extent an investigation into his claims was completed. Reply, p. 61, citing MSJ, Delaney Dec, Ex. A). However, plaintiff also sought monetary compensation and a letter of reprimand for the officers who had been involved in the extraction. Reply, p. 61.

All of the above back and forth ignores what this court finds as specifically controlling precedent, Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). The court held that a staff misconduct complaint was exhausted, and one need not even file a third level appeal, once the grievance was "partially granted" at the second level, and that an investigation into the staff misconduct had been completed. "We conclude, as have these other circuits, that a prisoner need not press on to exhaust further levels of review once he has either received all "available" remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Id. at 935 (emphasis added). The Brown decision went on to find in one of the two situations before it the Brown case, that with respect to a staff misconduct complaint, once an investigation was completed, there were no further "available" remedies -- even where monetary relief been initially requested. Id. at 937-940.

One difference between the Brown case and this one is that the second level decision in Brown advised that there was no further review, and in this case, plaintiff was advised that he could proceed to the third level (even though plaintiff's grievance involved staff misconduct only). The inconsistent review advice highlights the esoteric nature to which the exhaustion process has arrived, where even prison officials may be confused as to what constitutes further levels of review. The advice-of-further-review situation was seized upon in Cunningham v. Ramos, 2011 WL 3419503 (N.D. Cal. 2011), as distinguishing its situation from the one in Brown. However, Cunningham did not focus on the alternative language in Brown quoted above, i.e., that when no further remedies actually exist, exhaustion to the third level is not required. The case here did not involve any separate claim apart from staff misconduct, and according to Brown, it is defendants' burden to show the existence of further "available" remedies which might exist at the third level. Brown at 937.

This case also involves the rather unusual situation where the second level was decided on the merits, and the [unnecessary] third level, and apparently without giving plaintiff an opportunity to be heard, sua sponte determined that the first level appeal was untimely. However, the undersigned will stick with what he understands to be the governing law in Brown. In the staff misconduct context, unless defendant demonstrates what further remedies are available at the third level, exhaustion is complete at the second level when the grievance is partially granted, and the decision to investigate is at an end.

Moreover, and in any event, even if Brown were to be determined as not controlling, the issue of whether equitable tolling would apply to plaintiff's first level grievance is not one that can be decided at this time as material issues of fact exist concerning plaintiff's ability to file within the determinative period.

Defendant Kopec argues that the claim was not exhausted as to him because his name was not referenced; however, since the parties agree that it is undisputed that defendant Kopec authorized the cell extraction, it appears that to the extent plaintiff has raised a genuine issue of material fact with regard to whether this claim was administratively exhausted as to the specifically named defendant Martin, plaintiff has arguably sufficiently raised such an issue with respect to defendant Kopec. The Supreme Court has made clear that what is required to exhaust a prison's administrative grievance process is the level of detail a prison procedure requires for exhaustion of a particular system or claim. Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 923 (2007) (court's imposition of a requirement of naming a particular official in a grievance is unwarranted where prison procedure does not mention it); Griffin v. Arpaio, 557 F. 3d 1117, 1120 (9th Cir. 2009) ("the primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation."). Here, where plaintiff's grievance provides the basis for the gravamen of his complaint as to defendant Martin, his failure to specifically name defendant Kopec, who authorized the cell extraction, does not result in a finding of a failure to exhaust.

Application of Heck-bar

Defendants argument that plaintiff's claim of excessive force is barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), is unavailing. Under Heck v. Humphrey, a state prisoner proceeding on an action under §1983 cannot recover money damages if a judgment favorable for plaintiff "'would necessarily imply the invalidity of his conviction or sentence. . . unles the plaintiff can demonstrate that the conviction or sentence has already been invalidated.'" Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006), quoting Heck, 512 U.S. at 487, 114 S. Ct. [at 2372]. In Guerrero, the Ninth Circuit, while finding a number of plaintiff Guerrero's claims Heck-barred, said of his claims for excessive force against defendants that they were not such as to necessarily implicate the validity of his conviction because "[t]he officers' alleged use of excessive force during Guerrero's arrest does not preclude the possibility that Guerrero was still guilty of possession of narcotics." Id., at 703; see also, Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005) (en banc)(excessive force claim not Heck-barred where claim arose from action subsequent to conduct on which conviction for willfully resisting, delaying or obstructing officer was based); Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001)(although dismissed on alternative grounds, plaintiffs' claim regarding the manner of the blood draw did not implicate plaintiffs' DUI convictions and thus were not Heck-barred); (Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996) (prisoner's excessive force claim during arrest not barred by Heck even though his assault with a deadly weapon conviction had not been overturned). Thus, the instant plaintiff's having been shot with a 40B stinger round during a cell extraction, the gravamen of this action,*fn15 does not, as defendants argue, implicate his disciplinary conviction and loss of good time credits for breaking a sprinkler and requiring the cell extraction itself. Accordingly, summary judgment on this basis must be denied.

Eighth Amendment/Qualified Immunity

Defendant Martin Plaintiff alleges in his verified first amended complaint, filed on May 21, 2008, that, while he was single-celled in the High Desert State Prison Ad Seg unit on December 20, 2001, he refused to submit to hand cuffs when ordered to do so, after which a cell extraction team was formed. First Amended Complaint (FAC), p. 3. Defendant Martin is alleged to have discharged a 40B stinger round during the cell extraction of plaintiff, followed by a T-21. O.C. discharge. Id. The 40B stinger round is claimed to have struck plaintiff "on the left side of the head, causing immediate swelling." Id., at 3-4. Defendant Martin, undisputedly a sergeant at HDSP at the relevant time, contends that his unauthorized use of the 40B stinger round was not intentional and did not constitute excessive force.

"[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7,112 S. Ct. 995, 999 (1992), citing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986). When determining whether the force was excessive, we look to the "extent of the injury..., the need for application of force, the relationship between that need and the amount of force used, the threat 'reasonably perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful response.'" Hudson, supra, at 7, 112 S. Ct. at 999.

While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated." Hudson, supra, at 9, 112 S. Ct. at 1000, citing Whitley, at 327, 106 S.Ct., at 1088.

It is undisputed that plaintiff broke the fire suppression sprinkler in the HDSP Ad Seg unit where he was single-celled on December 20, 2001; that defendant Martin instructed plaintiff to submit to handcuffs and exit the cell so that maintenance staff could repair the sprinkler head; that plaintiff refused to comply with defendant Martin's order; that a tactical extraction team was authorized to remove plaintiff from his cell; that launchers and munitions were stored in the control booth; that defendant Martin, following a common practice, yelled to the control booth operator, Officer Spidle, and Spidle came to the control booth window, with Martin requesting a 40 mm launcher; that defendant Martin had worked with Officer Spidle before, did not know him to be careless, had no reason to believe he was not fully competent, and trusted him; that Officer Spidle handed defendant Martin a 40 mm launcher and a handful of rounds through the "window" in the floor of the control booth; that Officer Spidle did not indicate to defendant Martin that he had been unable to hear which rounds he requested, or that he was providing defendant Martin any rounds other than the T-21 blast dispersion rounds; that the 40 mm launcher is a less-lethal weapon that was used to deploy both T-21 blast dispersion rounds and 40B stinger rounds. Defendant Martin's direct supervisor, Lieutenant Wright, was present during the cell extraction. Plaintiff was issued the Calculated Use of Force Advisement, ordered to submit to handcuffs and exit the cell, instructed that if he failed to obey the order he would be physically removed from the cell, and warned that physical force might be used to facilitate his removal from the cell, but plaintiff did not comply, instead wrapping himself in a blanket and getting under a table at the back of the cell. Force was determined to be necessary to remove plaintiff from the cell. Using the 40mm launcher, defendant Martin deployed a 40B stinger round into plaintiff's cell (a 40B stinger round is a munition which contained small rubber balls). While it is not in dispute that the first round defendant Martin fired was the unauthorized 40B stinger round, what remains at issue with respect to this deployment is what constitutes the gravamen of this action. Defendant Martin maintains that shooting the 40B stinger round was an accident, see, e.g., defendant Martin's declaration:

I loaded the 40 mm launcher with what I believed was a T-21 blast dispersion round ...... The sound the round made upon discharge alerted me that I had inadvertently deployed a 40B round rather than a T-21 blast dispersion round. Until the round was deployed, I did not know that I had any 40B stinger rounds in my possession. I immediately discussed the error with Lieutenant Wright.... I did not act maliciously or sadistically. Nor did I intend to cause Graham any harm. At the time of the cell extraction, I was not mad at Graham.

Ex. A, to MSJ (docket # 107), Declaration of defendant Martin, ¶¶ 27, 32-34, 46-47. In addition, in an 837C supplement to crime/incident report made dated the same day as the incident on Dec. 20, 2001, defendant Martin stated with regard to discharging the stinger round:

I then discharged what I thought to be one 40 m/m T-21, O.C. round through the food port toward the back wall of the cell. After discharge I did not observe any O.C. within the cell, and I observed small round balls rolling on the floor. It was at this time that I realized that I had inadvertently discharged a 40B-Stinger Round.

Opposition (Opp.) (docket # 113-2), attachment to defendant Martin's deposition, Ex. 4, p. 47.

Plaintiff, on the other hand, declares that defendant Martin, in the morning on the same day as the incident at issue, but prior to it, told plaintiff that he knew about an incident that had allegedly occurred the day before, on December 19, 2001, wherein plaintiff was accused of "head-butting" a guard and informed plaintiff "that he does not tolerate his guards being treated like that." Opp. (# 113-8), plaintiff's Dec., ¶¶ 3, 8. Plaintiff contends that defendant Martin was angry at plaintiff for the alleged headbutting of a colleague the day before and that twice before shooting, defendant Martin had threatened plaintiff, saying "he does not tolerate his guards being treated like that" and he would have plaintiff "licking his own balls" by the end of the day. Plaintiff's Declaration, ¶ 12. Plaintiff vows that after he had broken the sprinkler head in his cell, defendant Martin came back to plaintiff's cell, telling him "to cuff up so that the guards could fix the broken sprinkler," which plaintiff avers that he refused to do because he "was scared of what Martin and the other guards might do to me." Id., at ¶ 11. According to plaintiff, "Sergeant Martin said they would have to come in and take me out of the cell. He said by the end of the day he would have me 'licking my own balls,'" which plaintiff took to mean "he intended to cause me harm." Id., at ¶ 12; see also, plaintiff's Dep. 85: 21-25 - 86:1-4 (wherein plaintiff testifies defendant Martin told him that "by the end of the day, he will have me licking my own nuts."). Also other officers in the unit taunted plaintiff and warned him that he would have a hard time there, making his food into a disgusting slop, according to plaintiff. Id., at ¶¶ 6-7. Further, plaintiff produces, in addition to other portions, that section of defendant Martin's deposition wherein he attests that he had never before or after the subject incident accidentally fired a stinger when he meant to fire an O.C. round and had never done the reverse, nor had he ever heard of any such accidental firing by someone else. Opp., defendant Martin Deposition, Ex. 4, 59:4-21; see also, Lieutenant's Wright's deposition, wherein he attests to having been present at more than a thousand cell extractions over his more than 23 years with CDCR and testifies, that other than in this instance, he had never heard of an officer having fired one type of round when intending to fire another. Wright Dep. 27:13-15, 44:25-45:15. Moreover, plaintiff has produced evidence of the contrast in the markings and color of the 40B stinger round and the T-21 O.C. blast dispersion round, to which accurate depiction defendant Martin and other correctional officers attested. Opp., (# 113-1) Declaration of Brendan Kelleher, ¶ 3, citing plaintiff's Ex. 3 and deposition testimony of defendant Martin, Ex. 4, 47:11-[25], [48:1-17]; Deposition of Mike Wright,*fn16 Ex. 6, 58:20-[page 61]; Deposition of Anthony Campa, Ex. 7, 52:20-22, 54:2-3. Although Mr. Campa indicated that he was not sure whether in December of 2001 all O.C. canisters were orange (Campa Dep. 53:16-23), Mr. Wright was definite that in December 2001, a 40B stinger round had black writing while an O.C. round, had in his experience, always been orange (Wright Dep. 61:13-25) (as was depicted in the photographs). While plaintiff concedes that the shape and size of T-21 blast dispersion and 40B stinger casings are similar, although the contents differ (see plaintiff's response to DUF no. 29), plaintiff argues for the distinctiveness of the markings, i.e., the 40B stinger round is marked with a prominent black label, "STINGER," while the O.C. rounds have the words "MUZZLE BLAST O.C." in "fluorescent orange," making the use of the stinger round in place of the O.C. round less likely to have been mistaken. See Opp., plaintiff's undisputed facts (PUF) nos. 1 and 2, citing Kelleher Dec. ¶ 3, defendants' set three discovery responses at Ex. 2; photographs of rounds at Ex. 3; and Ex. 4, defendant Martin's Dep. 47:5-49:23. In response to PUF nos. 1 & 2, defendants do not dispute that the rounds were generally marked as described by plaintiff but object that the rounds at issue were unlikely to have been as clearly marked, citing defendant Martin's testimony that writing can rub off the side of the canister from being moved around and hitting each other:

Mr. Berry: Q. In your experience working with these types of rounds, did you ever see a round where the writing had rubbed off the side of the canister. [Martin] A. Oh, yes.

Q. Did that happen often?

A. Yes. And it was just a - - it - - it was just from the process that is utilized. They're inventoried, you know, three times a day, they're moved every day, and they hit each other and, yes, it - - the - - the writing gets pretty distorted, it's common.

Reply, pp. 119-20 (docket # 16-4, pp. 39-40); defendant Martin's lodged deposition testimony: 50:17-51:1. Defendants also contend that the rounds provided to counsel for plaintiff for photographing had not been stored in a control booth where labeling could have rubbed off. Reply at 120, citing Opp., Ex. 2, defendants' response to request for production no. 1. Notwithstanding, defendant Martin's own testimony tends to undermine the notion that the identifying labeling might have been significantly rubbed off:

Q. Did you look at the spent canister of the stinger round after you fired it?

A. Yes.

Q. Did it have writing on the side?

A. I believe it did, yes.

Q. What did the writing say?

A. Exactly what the round was.

Q. Written in black?

A. Yes.

Q. Had it been rubbed off?

A. I don't recall. I - - I don't know. But I - - I know I looked at it, and so it was legible.

Defendant Martin's Dep. 138:5-16.

The court finds that genuine issues of material fact have been raised by plaintiff, regarding whether the 40B stinger round was launched as a form of retaliation and as the culmination of threats plaintiff had received from defendant Martin as a result of a head-butting incident from the day before between plaintiff and defendant Martin's colleague. Moreover, the level of difficulty in properly aiming the 40 mm launcher is disputed as well-- if plaintiff's version of the fact were to be accepted, an inference could be drawn that the aiming of the weapon indicated an intent to harm. If inferences are drawn in plaintiff's favor, the purposeful discharge of the stinger rounds at plaintiff could be viewed as malicious. As previously noted, it is not for this court to determine credibility on a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S. Ct. at 2511.

Qualified Immunity

In resolving a claim for qualified immunity the court addresses two questions: (1) whether the facts, when taken in the light most favorable to plaintiff, demonstrate that the officers' actions violated a constitutional right and (2) whether a reasonable officer could have believed that his conduct was lawful, in light of clearly established law and the information the officer possessed. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987). Although the Supreme Court at one time mandated that lower courts consider these two questions in the order just presented, more recently the Supreme Court announced that it is within the lower courts' discretion to address these questions in the order that makes the most sense given the circumstances of the case. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009).

The court has found that taking the facts in the light most favorable to plaintiff, which it must on this motion for summary judgment, that defendant Martin's concededly unauthorized action in discharging a 40B stinger into plaintiff's cell during the December 20, 2001, cell extraction raises a genuine question of material fact as to whether plaintiff's Eighth Amendment rights were thereby violated.*fn17 Moreover, the factual issue of Martin's alleged reference to a canine outcome for plaintiff is very disputed. The "aiming" fact is disputed. When such actual factual disputes exist, as opposed to merely differing inferences from, undisputed historical facts, summary judgment on qualified immunity is inappropriate. Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011). Until such factual issues are resolved, inferences cannot be dispositively drawn, and the issue of whether a reasonable officer could have believed such (disputed) conduct was lawful in light of clearly established law and in light of the information he possessed cannot be made at this time. The motion for summary judgment as to defendant Martin must be denied.

Defendant Kopec

Plaintiff seeks to implicate defendant Kopec for an Eighth Amendment violation for having authorized the cell extraction on December 20, 2001. FAC, p. 3. Defendant T. Kopec, undisputedly employed as Acting Facility Captain at HDSP at the relevant time, maintains that he did not and could not authorize use of the 40B stinger round. It is not in dispute that defendant Kopec was not present during the cell extraction. It is undisputed that defendant Kopec was not responsible for defendant Martin's training. Although it is not in dispute that neither defendants Martin or Kopec nor non-party Lieutenant Wright (defendant Martin's direct supervisor during the extraction) can recall whether they knew, at the time of the extraction, of plaintiff's alleged assault on a correctional staff person the day before the cell extraction at issue, plaintiff asserts that circumstantial evidence gives rise to defendant Kopec's involvement. Plaintiff cites defendant Kopec's declaration that he "authorized only the use of force necessary to bring Graham under control and restore discipline and institutional safety and security." Opp., p. 43, Rsp. to DUF, citing MSJ, Ex. B, defendant Kopec Dec., ¶ 15. Plaintiff also calls up his deposition testimony, wherein defendant Kopec explained that "necessary" force "depends on what the lieutenant and the extraction deemed necessary force to make the inmate comply with their lawful orders." Opp. at 43, citing Kopec Dep. 75:13-15. Plaintiff maintains that defendant Kopec did not have authority to authorize the use of any force necessary to carry out the cell extraction under the applicable prison policy, OP (Operational Procedure) 118. Id., & Ex. 12 (OP 118). Plaintiff argues that under OP 118, defendant Kopec, temporarily elevated to the position of Acting Captain, did not possess the full authority of a captain, and defendant Martin took the authorization to use both a stinger round and OC, the use of either of which defendant Kopec under the 2001 prison policy, along with the use of the 40 mm launcher), did not have the authority to approve. Opp., Rsp to DUF, p. 42, citing Kopec Dep. 29:3-7, 36:6-9, 39:22-40:2, 41: 19-22 & Ex. 12 at 4. Defendant Kopec, supported by testimony of non-party Wright, concedes that the written policy (OP 118) is ambiguous, inasmuch as, under "authorized extraction equipment," it states, inter alia, "37mm Launcher (requires regional administrator authorization)," while under "equipment use," the following, in part, is stated: "the 37mm Launcher with the Def-Tec # 20F round is a less lethal force weapon that may be used with authorization of the Regional Administrator Warden or Chief Deputy Warden as a barricade remover." Reply to Rsp to DUF, pp. 12-16, citing Opp., Ex 12, OP 118 at 3-4 (strike-out and italics in exhibit). As defendant also points out, the policy does not require approval by the regional administrator, but does state under "authorized extraction equipment" that "Oleoresin Capsicum (supervisors only, requires Captain/AOD approval)," while under "equipment use," the use of OC does not list any authorization requirement. Id., OP 118 at 4. Nevertheless, both defendant Kopec and non-party Wright testified that regional administrator authorization for the 37 mm launcher was only required for the Def-Tec # 20 F round (which, indeed, the policy expressly references) and that use of the launcher to deploy at T21 round did not require approval by the warder or regional administrator. Id., citing Defendant Kopec Dep. 40:15-41 (defendant Kopec testifies that section referencing the need for regional administrator approval for use of the 37mm launcher had been revised and superseded by the section requiring only warden or chief deputy warden approval), 42:14-43:11, 50:15-25; Wright Dep. 50:1-53:1 (noting, inter alia, that indicates the revision of cell extraction policy states that it occurred in September of 2001, which means it would have governed the extraction of Dec. 20, 2001, 52:6-12 (testifying that approval of warden or regional administrator was not required for use of for T-21 OC round). Moreover, defendant Kopec repeatedly testified, as he avers, that he did obtain the requisite approval to authorize the cell extraction and that the use of necessary force came within the limitations of policy. Kopec Dep. 28:14-29:2 (attesting that he got "prior approval from higher up" for the "calculated use of force" before authorizing plaintiff's cell extraction which "based on what the policy was to use in that calculated use of force"; 31:16-21 (testifying that he never instructed an officer to act without getting proper authorization, stating "I spent 32 years in the military. I learned chain of command"); 43:19-24, 44:4-45:1 (testifying that he would authorize the use of "what was authorized by policy"; "I would not say, 'You have to use this, you can't use this,' it's whatever the policy was, the cell extraction team would determine what was the best equipment to use at that time"; "I would give them the authorization from higher up that I received for them to do the cell extraction per the policy... They knew what was authorized, they what circumstances authorized them to use it. I could not tell a lieutenant what to use and what not to use, he knew what to use based on the circumstances"; 74:25-75:19 ("Q. Did you yourself have the power to authorize the cell extraction team? A. No, that was from higher up. I was acting captain. I had to get approval from a higher authority... Q. ...Did you have in December 2001 the power to authorize use of force. A. After I got approval from my supervisor, yes"; also testifying the necessary force was "what the lieutenant and the extraction team deemed necessary force to make the inmate comply with their lawful orders. )." Nor is plaintiff's citation to a portion of the policy that speaks of use of a 37 mm launcher and simply does not reference use of a 40 mm launcher sufficient to counter defendant's evidence in support of such use. See Reply to plaintiff's rsp. to DUF, citing Declaration of K. Bloem, non-party HDSP Armory Officer since 2004, employed by CDCR at HDSP since 1995 (¶ 1).*fn18 Declarant Bloem declares that use of the 37mm launcher was being phased out and replaced by the 40mm launcher in 2001, that other than the 3mm difference in barrel size, the only significant difference of the 40mm from the 37mm launcher was the rifling in the barrel which increased of the accuracy of projectiles but would not have affected deployment of 40B stinger or T-21 blast dispersion rounds because the cartridges containing those munitions were not released upon their deployment. Bloe Dec., ¶¶ 2, 5.

All of this back and forth about the regulations, i.e., what weapon was authorized to be used when, does not bear on Kopec's state of mind, or what he did, or did not do, on a particular day when exigent circumstances had arisen out of his presence. It is not enough for Eighth Amendment supervisory liability that a supervisor's actions, or inactions, can in some technical sense be argued to have "set in motion" a series of events which culminated in some other officer's use of force in a malevolent fashion. A supervisor with an "innocent" state of mind simply cannot be liable because some act on his part may have, from a "for want of a shoe the horse was lost ...." actual cause standpoint, contributed to a certain outcome. If plaintiff's theory were to hold water, Kopec's calling in sick the day of the incident would have left him liable. Obviously, there is no bottom to plaintiff's Kopec liability bucket.

Rather, the supervisor himself must have acted in some grossly reckless or purposeful fashion which substantially encouraged the actual actor to "lay out the punishment." Moss v. U. S. Secret Service, 675 F.3d 1213, 1230-1231 (9th Cir. 2012) ("But [section] 1983 plaintiffs nevertheless some 'culpable action or inaction' for which a supervisor may be held liable."). See also Larez v. City of Los Angeles, et al.,, 946 F.3d 630, 945-946 (9th Cir. 1991) (Chief Gates had purportedly whitewashed many previous investigations into police officer misconduct thereby giving the defendant officers a mind set of immunity when it came to misconduct). In their argument about the regulations, plaintiff merely points to the fact that Kopec did not authorize, or could not, authorize the use of a particular weapon. But without more, such an allegation is an Eighth Amendment "so what."

As the undersigned intimated at the hearing on the motion, the arguments required to implicate Kopec involve leaps that are far too speculative. See docket # at pp. 3-7.*fn19 Plaintiff concedes that defendant Kopec may not have had specific knowledge that a 40B stinger round was to be deployed. See Opp., plaintiff's response to DUF 61. However, plaintiff contends that this defendant was on notice that one of his subordinates might seek to retaliate against plaintiff during the cell extraction due to the alleged head-butting incident. For support for this contention, plaintiff cites an excerpt of defendant Kopec's deposition. Id.

Q. After the cell extraction would anyone from the cell extraction team report to you about - -A. The lieutenant would always make a report to me because I would ask, you know, he would always tell me, "everything went fine, nobody got injured, the inmate cuffed up when we showed up at the cell." You know, we would get an after action report, you know, and then he would tell us verbally and then everybody would be writing their reports, and then I would review the written reports at a later date.

Defendant T. Kopec Dep. 32:11-19.

The fact that an after action report is usually made is not evidence that defendant Kopec received such a report regarding the incident of Dec. 19, 2001, nor is there any evidence that this defendant ever knew of alleged retaliatory threats preceding the December 20, 2001, cell extraction being made by defendant Martin and/or others. It is not in dispute that defendant Martin's direct supervisor, Lieutenant Wright, was present during the extraction and that it was determined (uncontroverted) that force was necessary to remove plaintiff from the cell.

Plaintiff also made reference to a disputed fact as to whether certain regulations required Lt. Kopec, as acting captain, personally to be on the scene of a cell extraction, and since he was not and was busy elsewhere, this tends to "prove" that Kopec knew exactly what was going to take place so he could be absent thereby "causing" the incident. Or perhaps, plaintiff is arguing that if only Kopec had been on the scene, as opposed to his essential equal, non-party Lt. Wright, Sgt. Martin would never have purposefully used the 40 B stinger round. All of this is the grossest of speculation. There is no evidence which remotely allows the inference to be drawn that plaintiff is seeking the court to draw. There is no evidence to suggest that Kopec had any more knowledge than non-party Lt. Wight had, concerning any action that Martin might, or might not, take.

Finally, in order for a supervisor to be liable in the § 1983 context, there must be causative effect between what that supervisor did or did not do, and the violation of the Amendment at issue. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (holding that to establish liability under 42 U.S.C. § 1983, a plaintiff must show a defendant's acts or omissions caused a constitutional deprivation); see also McSherry v. City of Long Beach, 584 F.3d 1129, 1138 (9th Cior. 2009) (summary judgment requires facts, not... rank speculation); Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir.1996) ( "mere allegation and speculation do not create a factual dispute for purposes of summary judgment").

Because the court does not find that there is a genuine issue of material fact that has been raised as to whether plaintiff's Eighth Amendment rights have been violated by defendant Kopec, there is no occasion to consider defendant Kopec's entitlement to qualified immunity.

Accordingly, IT IS ORDERED that:

1. Defendants' motion for summary judgment, filed on March 29, 2012 (docket # 97) be granted in part and denied in part: GRANTED as to defendant Kopec, and DENIED as to defendant Martin;

2. This matter will proceed to trial as to defendant Martin on plaintiff's claim of an Eighth Amendment violation by defendant Martin's undisputed discharge of the 40B stinger round; and

3. The dates for the final pretrial conference and trial in this matter to be held before the undersigned are hereby set as follows: the final pretrial conference will be held on January 10, 2013, at 10:00 a.m., and the trial is set for February 25, 2013, at 9:00 a.m.

Gregory G. Hollows


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