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