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Vernon Wayne Mcneal v. Evert

January 17, 2013

VERNON WAYNE MCNEAL, PLAINTIFF,
v.
EVERT, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending before the court is a motion for summary judgment brought by seven of the nine remaining defendants: defendants Ervin, Hooven, Ginder, Chatham, Barton, McCoy, and Chenoweth. Dckt. No. 141. Defendants Leckie and Van Leer do not seek summary judgment. Dckt. No. 141-1 at 6 n.1.*fn1 For the reasons that follow, the undersigned recommends that summary judgment be granted as to defendants Ginder, McCoy, Hooven, Chenoweth, and Barton and denied as to defendants Ervin and Chatham.*fn2

I. Background

This action proceeds on the May 9, 2005 amended complaint in which plaintiff alleges that defendant correctional officers Ervin, Hooven, Ginder, Chatham, McCoy, and Chenoweth used excessive force against him and defendant medical assistant Barton was deliberately indifferent to his serious medical needs by failing to appropriately respond to the injuries he sustained from the excessive force. Dckt. No. 9, Am. Compl. at 3-14.

The following facts are undisputed unless otherwise indicated: At all times relevant to this action, plaintiff was an inmate housed at High Desert State Prison ("HDSP"), and defendants worked at HDSP. Dckt. No. 141-2, Defs.' Statement of Undisputed Facts ISO Defs.' Mot. For Summ. J. ("DUF") 1, 2; Dckt. No. 9, Am. Compl., at 2-3. On the morning of July 11, 2004, defendant McCoy placed plaintiff and his cell-mate Rollins in the shower, and defendant Ginder searched their cell. DUF 7, 8; Dckt. No. 128, Pl.'s Statement of Undisputed Facts ("PUF") 7, 8.

Plaintiff alleges that "sexual misconduct" by Rollins toward a female officer earlier in the morning caused defendants Ginder and McCoy to retaliate by performing the cell search, but defendants dispute this fact. PUF 2, 13, 14; DUF 7, 8. Defendants claim that the search was not related to the alleged incident between Rollins and the female officer, but was instead a legitimate search per prison protocol prompted by plaintiff's request for additional soap and toilet paper. DUF 3-8. Plaintiff denies having made such a request. PUF 13. Plaintiff alleges that defendant Ginder took all toilet paper, soap, cleaning supplies, and plaintiff's personal books. PUF 9. According to plaintiff, he then asked defendant Ginder for some soap and toilet paper, which defendant Ginder did not provide. Dckt. No. 9, Am. Compl., at 4. Defendants claim that, per prison protocol, they confiscated only excess toilet paper, soap, and library books, leaving one bar of soap and one partial roll of toilet paper for each inmate. DUF 8, 9. Plaintiff further alleges that, after the change of shift, he asked defendant Ervin for soap and toilet paper but was refused. PUF 15. Nor did defendant Ervin provide plaintiff with a shower that day. PUF 16.

Later that day, defendant Ervin attempted to deliver dinner to plaintiff's cell. DUF 11; PUF 17. Plaintiff alleges that the trays brought to his and Rollins's cell were paper, while other inmates were not given paper trays. PUF 19. Plaintiff viewed the paper trays as a form of discrimination and retaliation and consequently dumped or knocked the first tray on the floor. Dckt. No. 9, Am. Compl., at 5; DUF 12. The parties dispute whether plaintiff reached through the food port to knock the second tray out of defendant Ervin's hand or whether defendant Ervin threw the tray at the food port. PUF 20; Defs.' P.'s & A.'s ISO Defs.' Mot. For Summ. J. at 3, n.

2.

Defendant Ervin and former defendant Officer Evert called their watch commander, defendant Chatham, to report the incident. DUF 13. Defendant Chatham in turn reported the incident to the watch lieutenant, defendant Van Leer. DUF 14. Defendant Van Leer asked that defendant Chatham bring Rollins and plaintiff to the program office to be interviewed. DUF 15. Defendant Chatham went to escort the two inmates, but plaintiff refused. DUF 16, 17; PUF 21, 22. About twenty minutes later, plaintiff agreed to submit to handcuffs, and defendants Chatham, Chenoweth, and Hooven escorted plaintiff and Rollins to the program office. PUF 23; DUF 18, 19. Plaintiff states that he told defendants of certain prior injuries during the escort and that defendant Chenoweth stated that he did not care. Dckt. No. 9, Am. Compl., at 6;Dckt. No. 127, Pl.'s Decl. ISO Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Decl.") at 4.*fn3 Plaintiff's Amended Complaint contains no allegation of excessive force during the escort to the office. See Dckt. No. 9, Am. Compl., at 5. In his deposition testimony, plaintiff testified that he did not remember that the escorting officers harmed him in any way. Dckt. No. 84, Pl.'s Dep. at 69:18-70:15. In declarations opposing summary judgment, however, plaintiff now claims that defendant Hooven or defendant Chenoweth applied handcuffs too tight. See PUF 36; Dckt. No. 127-2, Pl.'s Decl. at 72, 77.

In his interview, defendant Van Leer asked plaintiff, "What was going on." PUF 25; DUF 22. Plaintiff replied along the lines of "Don't you know already" or "You should know, you are the lieutenant." PUF 25; DUF 23. Defendant Van Leer told defendant Leckie and Officer Evert to take plaintiff to the holding cell. PUF 26; DUF 24.

The parties dispute what happened between the program office and the holding cell. According to plaintiff, defendant Leckie and Officer Evert "snatch[ed]" him out of his chair. PUF 26. Once outside the office, Officer Evert said, "he's resisting," and both he and defendant Leckie bent plaintiff over at the waist and bent his wrists, fingers, and thumb. PUF 26; Dckt. No. 127, Pl.'s Decl. at 14. A few feet from the holding cell, plaintiff tried to go down on one knee. PUF 27. Defendant Leckie and Officer Evert pulled plaintiff back up, although he was still bent over. Id. Officer Evert ordered plaintiff to go down to his knee. Id. Before plaintiff could comply, defendant Leckie and Officer Evert "slam[med him] to the floor hard." Id. Defendant Leckie had plaintiff's right arm and shoulder and came down with his knee on plaintiff's face. PUF No. 29. Officer Evert had plaintiff's left arm and shoulder. Id.

Plaintiff does not identify in his undisputed facts "other defendants" who he asserts came down on his back with their knees, "pressing me hard to the floor hurting me." PUF No. 29.

Instead, he states, "I didn't know who these Defendants was [sic] until I got they incident reports [sic]." Id. Plaintiff's opposing memorandum asserts that defendants Ervin and Chatham did so. Pl.'s P.'s & A.'s ISO of Pl.'s Opp'n at 41. According to plaintiff, "defendants" -- presumably Ervin and Chatham -- then got off of him and raised his legs, crossed them, and pressed them into his buttocks. PUF 29.*fn4 Plaintiff states that he never thrashed or kicked his feet during the episode. PUF 32. Plaintiff asked defendant Leckie and Officer Evert to "easy up" three or four times, but defendant Chatham did not order either officer to do so. PUF 33.

Defendants claim that, during the escort to the holding cell, Officer Evert directed plaintiff three times to kneel down so that he could apply leg restraints, but that plaintiff refused to comply. DUF 26. Defendant Leckie and Officer Evert then applied pressure to plaintiff's shoulders and arms to force him to the floor. DUF 27. Defendant Ervin held plaintiff's legs to the ground. DUF 28. A few seconds later, defendant Chatham took over holding plaintiff's legs. DUF 29.

Once Officer Bitle arrived with leg restraints and applied them, defendant Chatham released plaintiff's legs. PUF 36; DUF 30. Plaintiff claims that the restraints were applied too tight. PUF 36. Defendant Leckie and Officer Evert picked plaintiff up and placed him in the holding cell, securing him in a "triangle retention device," which plaintiff asserts chained his hand to the holding cell door. PUF 37; DUF 32. According to plaintiff, no defendant checked to ensure that the restraints on his wrists and ankles were not too tight. PUF 37. Plaintiff says that, because the shackles were too tight and restricted his blood flow, he passed out in the holding cell. PUF 38. Plaintiff called out to defendant Van Leer to loosen the shackles. Id.; DUF 33. Plaintiff claims that defendant Van Leer told him he would get someone to loosen the shackles. PUF 38. Defendants claim that defendant Van Leer himself began to remove the retention device so that the handcuffs could be removed. DUF 34. Plaintiff passed out. PUF 43; DUF 34. Plaintiff states that he does not know how long he was passed out either time, but that defendants Chatham and Van Leer could see him from their offices. PUF 39, 40, 43. Plaintiff states that no incident reports or log books state how long he was in the holding cell and that he was not given bathroom breaks or water or otherwise looked after. PUF 41. Plaintiff states that he came to when defendant Van Leer pulled on the chain to his shackles and saw defendant Chatham bending down, looking at him. PUF 44. Defendants assert that defendant Van Leer immediately summoned defendant Barton, a medical technical assistant, to examine plaintiff upon seeing plaintiff faint. DUF 34.

Defendant Barton evaluated plaintiff and completed a medical report. DUF 35; see PUF 48, 49, 55, 56. Defendant Barton noted that plaintiff stated, "My whole body hurts," and that he had sustained scratches or abrasions on both knees and swelling on his right wrist. DUF 35.*fn5

Plaintiff states that he also complained of specific pain in his back, shoulders, hips, and testicles. PUF 56. Defendant Barton concluded that no further treatment was necessary. Id.

On July 12, 2004, plaintiff requested to be seen by health care staff, and a registered nurse evaluated plaintiff on July 13, 2004. DUF 36-39. The nurse observed that plaintiff walked with a normal gait, straddled a chair by throwing his leg over it, and turned his head without difficulty. DUF 38. Plaintiff was receiving Naproxen for prior injuries and had no injuries requiring urgent ...

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