FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights complaint pursuant to 42 U.S.C. § 1983. Before the court is a motion for summary judgment brought on behalf of defendant Bryant. Plaintiff has filed an opposition and defendant has filed a reply.
Plaintiff's statement of claim as it appears in his complaint states, in its entirety, as follows:
On Mon. June 14th 2010 at approx. 11:30am [sic] while being served my hot lunch by officer Bryant (badge #J-68) who attempted to give me a milk, which I tried to give back as I don't drink milk. [sic] He then slammed my left index finger in the food port. I then pushed my emergency button and Officer George (trainee) (badge # unknown at this time) and Officer J. Young (badge # J-48) (trainer) asked me what my emergency was and I told them I needed to see medical because my finger was just slammed in the food port and I was bleeding. At approx. 11:45am [sic] while trays were being picked up officer, [sic] Bryant (badge#J-68) was making a joke about the incident. I spoke with Mrs. Parker the decree attorney and sergeant Young (badge # unknown at this time), I was then seen by medical. On Tues. June 15 [sic] 2010, I saw the Dr. who ordered x-rays and told me that my finger was broke. I spoke with Mrs. Parker and she told me that I needed to quote these codes in my grievance [sic] 8th AMENDMENT (CRUEL AND UNUSUAL PUNISHMENT0 AND (A.TITLE15 [sic] AND CA. CIVIL CODE 1714a NEGLIGENCE). [emphasis in original document] It took approx. 2 days to receive any kind of medicine for pain. As of yet I still have not seen the Dr. for the follow-up concerning my broken finger. I had x-rays done on 6-18-2010 and I'm still waiting to get the results from the Dr.
(Doc. No. 1 at 4.) The incident described by plaintiff in his complaint allegedly occurred while he was incarcerated at Butte County Jail. However, the complaint did not contain any allegation with respect to whether plaintiff was incarcerated at the Butte County Jail at the time of the alleged incident as a pretrial detainee, a convicted prisoner or on some other basis. In terms of relief, plaintiff sought $250,000 in actual and punitive damages and a court order requiring that defendant Bryant be prosecuted for assault.
Pursuant to the court's April 7, 2011 order, this action is proceeding solely against defendant deputy Bryant on the claim that he allegedly used excessive force on plaintiff as well as on a state law claim of negligence. (Doc. No. 11 at 2.)*fn1
I. Defendant Bryant's Motion for Summary Judgment
A. Excessive Use of Force Claim
Defendant Bryant contends that he did not intentionally shut the hatch door on plaintiff's finger and that the incident was nothing more than an unfortunate accident. (Doc. 25-1 at 6-7.) Defendant Bryant has submitted his own declaration in which he states as follows. On June 14, 2010, shortly before noon, he was serving lunch to prisoners in the maximum security A-pod single cells. (Doc. No. 25-2, ¶¶ 5-6 at 2.) He opened the food tray port hatch and passed a food tray and a carton of milk to plaintiff. (Id. ¶ 7 at 2.) Plaintiff took the food tray and while defendant Bryant looked through the door window at plaintiff's face, the hatch door was closed. (Id.) Defendant Bryant contends that plaintiff did not say anything to him and that he did not see plaintiff attempting to hand anything back to him through the hatch door. (Id.) Defendant Bryant also declares that he does not recall that there was any difficulty closing the hatch door or any obstruction to the hatch door shutting normally. (Id. ¶¶ 7-8 at 2-3.) Furthermore, defendant Bryant asserts that plaintiff did not say anything to him at the time and did not express any pain or frustration. (Id. ¶ 9 at 3.) Lastly, defendant Bryant states that he did not intentionally close the hatch door on plaintiff's finger and repeats his contention that plaintiff did not complain about being injured at the time. (Id. ¶ 10 at 3.)
Defendant Bryant has attached to his declaration a copy of the jail incident report documenting the June 14, 2010 incident. (Id. at 7.) That report explains that on the day of the incident at approximately 4:36 p.m., plaintiff's index finger was assessed by RN Hickerson and it was merely noted that the tip of plaintiff's finger was "slightly red and bruised." (Id.) The report also indicates that Nurse Hickerson advised plaintiff that ice should be applied to the finger for any swelling that might occur. (Id.)
Defense counsel argues that the undisputed facts before this court establish that defendant Bryant did not violate plaintiff's constitutional rights under the Eighth Amendment standard which is applicable in evaluating an excessive use of force claim under the Fourteenth Amendment . (Id.) According to defense counsel, that standard requires plaintiff to establish defendant Bryant was aware that plaintiff faced a substantial risk of serious harm and disregarded that risk. (Id.) Furthermore, defense counsel contends, mere negligence is not sufficient to establish a constitutional violation. (Id.) Defense counsel also argues that the undisputed evidence before this court establishes that defendant Bryant did not see plaintiff hand anything back through the hatch door, that plaintiff's hand never passed the plane of the open hatch, and that defendant Bryant had no reason to believe that plaintiff was handing anything back through the hatch door when it was shut. (Id. at 8.) Therefore, defense counsel argues, defendant Bryant was unaware of facts from which he could infer that plaintiff was at any risk of harm and that defendant Bryant did not act with deliberate indifference towards plaintiff. (Id.)
Next, defense counsel argues that defendant Bryant is entitled to qualified immunity because plaintiff cannot demonstrate that at the time of the incident at issue, "there was any authority that clearly established a constitutional violation caused by the accidental closing of a food port hatch doorway onto the finger of a jail inmate." (Id. at 10.)
C. State Law Negligence Claim
Finally, defense counsel argues that defendant Bryant is entitled to summary judgment in his favor with respect to any claim of negligence based on state law because plaintiff failed to comply with the California Government Tort Claims Act and because no jury could find that defendant Bryant breached any duty of reasonable care owed to plaintiff based upon the undisputed facts. (Id.)*fn2 Counsel argues that no reasonable jury could conclude that defendant Bryant was negligent based upon the evidence before the court and that defendant Bryant is therefore entitled to summary judgment in his favor with respect to any state law negligence claim. (Id. at 13.)
II. Plaintiff's Opposition
In his opposition, plaintiff refers to specific sections of defendant's motion and offers the following counter-arguments.
Plaintiff asserts that he "routinely does not drink milk" and when he attempted to return the milk through the hatch door, he "assumes that the defendant would have looked down to retrieve the milk back from plaintiff, so to notice either plaintiff's hand or the milk being returned to him." (Doc. No. 28 at 2 "Point Two" and "Point Three.")
Plaintiff does not dispute that defendant Bryant was making eye contact with him and not looking at the door hatch; however, plaintiff argues that this was at least "unexcusable [sic] neglect" on defendant Bryant's part (Id. at 2-3 "Point Four.") Plaintiff does dispute, however, that he said nothing as defendant Bryant closed the hatch door on his finger. (Id. at 3 "Point Five.") Rather, he contends that he told defendant thereafter Bryant that the door had closed on his finger and that it hurt. (Id.) Plaintiff also argues that "defendant may not have intentionally closed the door on his finger, but . . . defendant['s failure] to make sure there was no obstruction present prior to closing the hatch door constitutes neglect on his part." (Id.)
For the first time, in his opposition to the pending motion for summary judgment plaintiff asserts that at the time of the alleged incident he was a civil detainee being held at the Butte County Jail under California's Sexually Violent Predators Act (SVPA), Welfare & Institutions Code § 6600, et seq. (Doc. No. 28 at 4 "Point Eight.") Plaintiff argues that because he was a civil detainee at the time of this incident, he is entitled to greater protection from the excessive use of force under the Fourteenth Amendment than that afforded to a convicted prisoner under the Eighth Amendment. (Id.)
As to defendant Bryant's contention that he did not see plaintiff handing the milk back to him through the hatch door and defendant's failure to mention that plaintiff had refused milk on other occasions, plaintiff argues that "there may not have been any malicious or sadistic intent on the part of defendant, but [plaintiff] does claim that this standard is not necessarily applicable to plaintiff." (Id. at 5 "Point Nine.") Plaintiff contends that the legal standard applicable here is whether defendant Bryant's conduct was "wanton or reckless regarding the infliction of harm." (Id. at 5 "Point Ten.") Plaintiff argues that defendant Bryant was "reckless" by "not making sure that plaintiff had nothing obstructing the closure of the food port door." (Id.) Plaintiff also asserts that defendant Bryant's conduct in this case constituted more than mere negligence. (Id. at 6 "Point Eleven.")
Plaintiff contends that defendant Bryant is not entitled to qualified immunity. (Id. at 6 "Point Thirteen.") He also argues that the California Government Tort Claims Act, does not apply here because: (1) he is seeking a remedy for personal injury, (2) he was not informed by the jail that he was required to file a claim with the Butte County Board of Supervisors, and (3) he is proceeding without counsel. (Id. at 6-7 "Point Fourteen.") In opposing the argument that under the undisputed facts of this case no reasonable jury could find that defendant Bryant breached a duty of reasonable care, plaintiff argues that defendant Bryant was reckless and negligent and that no reasonable jury would conclude that his conduct was justified. (Id. at 8 "Point Sixteen.") Finally, plaintiff contends that after the incident, he "immediately began pressing his emergency button in his cell requesting medical assistance for the injury." (Id. at 8 "Point Seventeen.")*fn3
Plaintiff has attached to his opposition, an inmate grievance form concerning both the incident and the medical care he received thereafter, as well as a response to that grievance in which prison officials indicated that the matter was under investigation. (Doc. No. 28 at 10-11.) However, plaintiff has offered no other evidence in opposition to defendant Bryant's motion for summary judgment.
Defendant Bryant points out that plaintiff has failed to file a separate pleading in response to defendant's statement of undisputed material facts as required. (Doc. No. 29 at 2.) He also argues that pursuant to Local Rule 260(b), by failing to deny of the any of the undisputed material facts set forth in defendant's statement of undisputed facts, plaintiff should be deemed to have admitted each of those facts. (Id. at 2-3.)
Counsel for defendant Bryant states that plaintiff appears to have conceded that defendant Bryant did not violate his rights under the Eighth Amendment. (Id. at 3.) Counsel points out that plaintiff suggests instead that his injury was caused by mere negligence on the part of defendant Bryant but notes that mere negligence does not give rise to a constitutional violation. (Id.) As to plaintiff's argument that the Eighth Amendment standard does not apply here, counsel for defendant Bryant notes that the court's screening order cautioned plaintiff that his complaint was being construed as presenting an Eighth Amendment claim based upon an alleged excessive use of force and that if plaintiff sought to bring his claim under a different legal theory, he should immediately file an amended complaint to clarify his claims. (Id.) Because plaintiff ...