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Hayes v. Dovey

United States District Court, S.D. California

November 26, 2012

Dontay D. HAYES, Plaintiff,
John DOVEY; Jeanne Woodford; J.G. Giurbino; M.E. Bourland; G.J. Janda; Wendy Still; James Tilton, Defendants.

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Dontay D. Hayes, Lancaster, CA, pro se.

Attorney General, State of California, Stephen A. Aronis, Office of the Attorney General, San Diego, CA, for Defendants.


(ECF No. 79)


I. Procedural Background

Dontay Hayes (" Plaintiff" ), a state prisoner incarcerated at Calipatria State Prison (" CAL" ), is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

Plaintiff claims J.G. Giurbino, M.E. Bourland, and G.J. Janda, CAL's former Warden, Chief Deputy Warden, and Associate Warden, respectively, deprived him of outdoor exercise for approximately nine months in violation of the Eighth Amendment while the institution was on lockdown from August 2005 through May 2006 (ECF No. 42).[1]

Bourland, Janda and Giurbino (" Defendants" ) now seek summary judgment pursuant to FED.R.CIV.P. 56 (ECF No. 76). Defendants and the Court have provided Plaintiff with notice of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc) (ECF Nos. 79-2, 80). Plaintiff has since filed a Response in Opposition (ECF No. 84), Declarations in Support of his Opposition (ECF No. 85), a Separate Statement of Undisputed Facts (ECF No. 88), and a Supplemental Opposition (ECF No. 97). Defendants have filed a Reply (ECF No.

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90) as well as a Notice alerting the Court of an unpublished Ninth Circuit's opinion in Franklin v. Scribner, 07cv0438 WVG (RBB), a case involving similar Eighth Amendment claims raised by another prisoner related to the same lockdown at issue in this case (ECF No. 94).

While this case was randomly referred to the Honorable Ruben B. Brooks pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation regarding the disposition of Defendants' Motion, nor oral argument is necessary. See S.D. CAL. CIVLR 72.3(a); S.D. CAL. CIVLR 7.1.d.

Having carefully considered the record as submitted, the Court now GRANTS Defendants' Motion for Summary Judgment because it finds they are entitled to judgment as a matter of law pursuant to FED.R.CIV.P. 56(a).

II. Factual Background

A. Undisputed Facts

During the entire period which is the subject of his suit, Plaintiff was assigned to CAL's Facility A. See Pl.'s Decl. in Supp. of Opp'n (ECF No. 85) at 1 ¶ 2; Borg Decl. Ex. A (ECF No. 79-5) at 13.

On August 18, 2005, a " riot against staff" broke out in three separate sections of Facility C between Hispanic inmates and prison officials. See Builteman Decl. (ECF No. 79-10), Ex. A [CDC 837-A " Amended Crime/Incident Report" Log No. CAL-FCY-05-08-0455 at 5-11]. The incident began at 2:55 p.m. in the Facility C Gym area when Correctional Officer Harbert discovered what he believed to be a weapon while conducting a clothed body search of an inmate named Gracia. Id. at 6. Harbert ordered the yard down, but Gracia began to struggle, and he struck Harbert in on the right side of the head. Approximately 10 to 20 Hispanic inmates then ran towards Officer Harbert and " began battering him, kicking and beating him with their hands and feet." Id. When another officer named Mosely saw Gracia strike Harbert, he began to assist, but was chased by 4 Hispanic inmates, one of whom he observed carrying an inmate-manufactured weapon. Id. Mosely retreated, but drew his state-issued expandable baton and struck the inmate who possessed the weapon. Id. When Officer Manning also attempted to assist, he too was chased by 4 Hispanic inmates, one of whom was also " brandishing a weapon." Id. Officer Manning was forced to retreat to a basketball court for his own safety, but Officer Harbert " received numerous injuries to his head and upper torso, was transported to Pioneer's Memorial Hospital and received " 40 plus" stitches to his head. Officer Mosely also sustained injuries to his head, neck and torso and was treated at an outside facility. Id. at 6, 8.

After ordering all inmates down over the public address system without results, Officer Vargas launched three " 2655 Skat Rounds" in the direction of the incident, but to no avail. Id. at 6. At approximately 2:57 p.m., Lieutenant Gonzalez contacted Central Control and requested a " Code 3 Response." Responding staff arrived, all inmates were directed in a " yard down" position, and restrained while staff attempted to identify the inmates involved and secure the area. Id.

Approximately 30 minutes later, at 3:30 p.m., Officer Melendrez radioed for assistance from the Facility C Dining Hall when four Hispanic inmates followed her onto a roadway, one struck her in the face and another " picked her up and slammed her to the ground." Id. The same four inmates also " began battering responding staff" until staff was able to quell the second incident by using a 37 mm wood round, OC spray and an expandable baton. Id. Melendrez sustained bruises to her back and mid-section as a result of the attack. Id. at 8.

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While prison officials were responding to the attack on Officer Melendrez near the Dining Hall, Officer Montano, the Control Booth Officer in Facility C's Housing Unit 5, observed 20-30 Hispanic inmates refusing to return to their cells. Montano watched an inmate named Rivera break a broom handle on the second tier adjacent to cell 231, and ordered him to " cease and drop the suspected weapon." When Rivera failed to comply, Montano discharged two 40 mm rounds and aimed toward Rivera, but instead struck the railing of the second tier. Rivera continued to " disperse the suspected makeshift weapons (broom and mop handles) to Hispanic inmates on the lower tier." Id. at 6.

At approximately 3:41 p.m., Montano activated his personal alarm, and responding staff found " approximately 20 to 30 Hispanic inmates ... laying in wait." Id. at 7. These inmates " began assaulting responding staff" with weapons, fists and feet. Staff used physical force in response, including expandable batons and OC spray, but " due to the magnitude of the attacks" and the " likelihood of great bodily injury," Officer Montano also " retrieved his [Ruger] mini 14 (.233) rifle," chambered a round, and again gave an order to inmates to stop. Id. at 7, 9. When Montano observed an inmate named Zamora " striking an unidentified defenseless officer with a broken broomstick, making stabbing motions while the officer was lying on the floor," Montano " discharged the weapon at Zamora," who fell to the floor. Id. at 7. All inmates then " complied with orders to assume a prone position," and staff immediately requested medical assistance. Id. Inmate Zamora, however, was pronounced dead by outside paramedics at approximately 4:14 p.m. Id.

After additional responding staff regained control of the Facility exercise yard and housing units, all Hispanic inmates were placed in restraints and moved to the Facility C gym for security purposes. Id. All non-involved inmates, described as " Blacks, Whites and Others," were given clothed body searches and returned to their cells, with the exception of those housed in Facility C, Building 5, which was temporarily declared a " crime scene." Id.

With the exception of inmates Zamora and Jacobo, who required immediate emergency medical transport, all inmates " identified as being involved in the incident were given clothed and unclothed body search[es]." Id. at 8. Thirty-seven inmates were immediately identified as possible " suspects," eleven individual correctional officers were identified as " victims" requiring medical attention, while " numerous other staff received less severe injuries," and twenty-two inmates, excluding Zamora and Jacobo, were decontaminated for O/C spray exposure and treated for various injuries including complaints of swelling, cuts, bruising, abrasions, lacerations, and pain. Id. 9-10. Twenty-seven correctional officers reported having used multiple other instances of force, including O/C spray, expandable batons, 37mm (wood) and " Skat" rounds, 40 mm, an MK-46 and Montano's Ruger mini 14 (.223) rifle to " quell the assault of inmates." Id. at 9.

As a result of the August 18, 2005 attacks, then Acting Warden Ryan declared a " State of Emergency" at CAL. See Decl. of Robert Borg in Supp. of Defs.' Mot. for Summ. J. (ECF No. 79-5) (hereafter " Borg Decl." ) ¶ 5.[2] Because the State of Emergency declaration modified " all level four programs" for a period set to exceed 24 hours, the State of Emergency was

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" approved in Sacramento." Borg. Decl. ¶ 5; see also CAL. CODE REGS., tit. 15 § 3383(b)(1). " The purpose of a State of Emergency, lockdown, and modified program at a prison is to safely control inmate movement, restrict potentially volatile inmates or groups, and afford time to evaluate overall operations in order to regain control of the prison population and establish order for the safety of staff, inmates, and visitors." Borg Decl. ¶ 5.

On the following day, August 19, 2005, Defendant Giurbino was named interim Warden at CAL. See Decl. of G. Giurbino in Supp. of Defs.' Mot. for Summ. J. (ECF No. 79-8) (hereafter " Giurbino Decl." ) ¶ 3.

B. Plaintiff's Allegations

In his Amended Complaint, Plaintiff contends that during the lockdown and modified program restrictions imposed, he was " confined to a double bunk cell twenty-four (24) hours a day, seven days a week," from August 2005 through May 2006. FAC at 4, 6, 10. Plaintiff contends he was permitted outside his cell during that time only to shower, " 98% of the time in restraints," or for approved medical, dental or mental health care or law library access. Id. at 4. Plaintiff admits there " was a period in March when [he] was allowed to exercise outdoors once," but that as a result of being deprived of outdoor exercise for nearly nine months, he " suffered headaches, muscle cramps, stress, anxiety and depression." Id.

Plaintiff further contends the " disturbance" which prompted the lockdown was " contained and controlled by October 10, 2005," and as a result, " the administration ... beg[a]n to ease restrictions." Id. at 6. For example, Plaintiff claims by November 5, 2005, " interviews had already been conducted," he and other critical workers were permitted to report to their assignments, and canteen and quarterly package privileges were resumed. Id. However, outdoor exercise continued to be denied Plaintiff and others even though they were " not part of the investigation" and " deemed [members of] a ‘ non-[a]ffected’ race." Id. Plaintiff concludes that Defendants continued the deprivation of outdoor exercise for a prolonged period " in bad faith" and " not to prevent a disturbance," but instead, " as a means to punish" and " deter [ ] future staff assaults by subjecting inmates to such extreme suffering that they would not want another period of lockdown." Id. at 6, 7, 10.

C. Defendants' Responses

As Warden, Defendant Giurbino asserts he " was the person responsible for making decisions" regarding both the lockdown and " the framework for the modified program," which included no outdoor exercise.[3] Id. ¶¶ 5, 6. In making these decisions, Giurbino alleges to have considered " not only the August 18, 2005 attempted murder of staff, but also the degree of organization that went into the widespread assaults, the violence at CAL which had been ongoing and escalating over the preceding two years," [4] " day-to-day circumstances,"

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" continuing violence or potential violence," the " intelligence gathered from inmate interviews," and " outside influences which could ...

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