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Chanthon Bun v. T. Felker

March 26, 2013

CHANTHON BUN, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Aurich, Brown, Essman, Felker, Garate, Handshumaker, Hook, Kirkland, Kissinger, Lower, Marsh, Perry, Ramsey, Sanchez, and Watkins ("defendants") move for summary judgment. For the reasons that follow, it is recommended that the motion be granted in part and denied in part.

I. Background

This action proceeds on plaintiff's original complaint, which alleges that defendants violated plaintiff's rights under the First and Eighth Amendments. Dckt. No. 1 ("Compl."); see also Dckt. No. 42 at 5 (findings and recommendations construing plaintiff's claims for relief). The following facts are undisputed unless otherwise indicated: Around 8:00 p.m. on November 24, 2006, plaintiff and other inmates began fighting with Officers Schwab and Aurich at High Desert State Prison (HDSP). Defs.' Mot. for Summ. J. ("MSJ"), Ex. A ("Schwab Report") at CF006-008; MSJ, Ex. D ("Pl.'s Dep.") at 192:10-13, 206:4-17, 271:6-17.*fn1 When plaintiff heard alarms, he left the building and went to the yard.

Pl.'s Dep. at 207:4-14. After the attack stopped, Officer Schwab went outside and sprayed plaintiff with pepper spray and handcuffed him, before Officer Schwab fell in a daze and was eventually helped up by other officers. Schwab Report at CF007; Pl.'s Dep. at 208:4-211:03, 212:10-12; MSJ, Ex G, Attach. 1 ("Marsh Report") at 57. Plaintiff and the inmates suspected of attacking the officers were ordered to kneel, but plaintiff cannot identify the officers who gave those orders. MSJ, Ex. A at CF051-52 ("Guilbeaux Report"); Pl.'s Dep. at 216:10-217:1. Officers refused to loosen plaintiff's handcuffs when plaintiff asked, but plaintiff cannot identify those officers either. Pl.'s Dep.at 270:13-271:5. When the Investigative Services Unit (ISU) staff arrived on the scene, defendant Marsh, the Facility A Sergeant, told officers to direct the inmates to breathe deeply so that fresh air could decontaminate those who had been pepper sprayed. Marsh Reportat 57-58.

Around 1:00 a.m. on November 25, 2006, after ISU staff finished processing the crime scene. Plaintiff and the other inmate suspects were moved from the yard and seated at tables in the dining hall. MSJ, Ex. A at CF053 (Eldridge Report); Guilbeaux Report; Marsh Report at 58.

Plaintiff was then interviewed by ISU staff and examined by medical staff. MSJ, Ex. A at CF031-33 ("Dittman Report"); Pl.'s Dep. at 222:4-15. Officer Fletcher took photographs of plaintiff and observed that plaintiff had no visible injuries. MSJ, Ex. W at ¶¶ 2-3; Pl.'s Dep., Ex. A1-A10. Photographs of plaintiff's hands do not depict bruises or extreme swelling. Pl.'s Dep. at 226:15-227:16, Exs. A7, A9, A10. There are no signs of pepper spray on plaintiff's face or clothes in the photographs, as plaintiff was able to wipe off the pepper spray while on the yard. Id. at 225:3-9, Exs. A1-A10.

After being photographed, plaintiff's handcuffs were removed, and his clothes were taken for evidence. Id. at 223:9-13; Dittman Report; MSJ, Ex. A at CF034 (HDSP Evidence Chart). Plaintiff was left wearing boxer shorts and was handcuffed again. Pl.'s Dep. at 234:1-20.

Around 1:45 a.m. defendant Watkins, a Medical Technical Assistant (MTA), saw plaintiff. MSJ, Ex. H, Watkin Interrog. Resp. No. 4. Plaintiff claims that Watkins was biased against him because of his alleged involvement in the staff assault and that she refused to treat him even though he informed her of injuries to his hands, face, and legs. Opp'n at 9, 11. According to Watkins, she did not see any injuries and plaintiff stated "no comment" when asked if he had any. MSJ, Ex. H, Watkin Interrog. Resp. No. 4. Watkins noted that plaintiff had been decontaminated from the pepper spray through fresh air. Id.

After seeing Watkins, Officers Guilbeaux and Little escorted plaintiff back to the dining hall, where they again seated him at a table, removed his handcuffs, and placed him in waist and leg restraints. Guilbeaux Report. Shortly before 4:00 a.m., defendant Perry led a team of officers that took plaintiff and three other inmates to Facility D, Building 5. MSJ, Ex. I, Attach. 1 at 70-71 ("Perry Report"). The walk took less than half an hour and plaintiff was escorted by Officer Guilbeaux and defendant Officer Lower. Pl.'s Dep. at 239:6-19; 243:12-25. The temperature was between 15 and 25 degrees Fahrenheit and plaintiff was wearing only boxer shorts and shoes. MSJ, Ex. I, Perry Interrog. Resp. No. 16; Opp'n at 8; Pl.'s Dep. at 236:12-20, 239:21-23. As plaintiff walked, the leg restraints dug into his ankles, causing three cuts. Pl.'s Dep. at 240:15-241:9; 252:6-10. Plaintiff did not complain during the escort that the waist or leg restraints were hurting or cutting him. Id. at 241:22-242:1.

Plaintiff was placed in a cell in Facility D, Building 5, and the waist and leg restraints were removed. Id. at 244:14-245:14. Defendant Lower did not see any injuries, and plaintiff did not notice that his ankles were bleeding until after he was locked in his cell, and the escort had ended. MSJ, Ex. J, Lower Interrog. Resp. No. 4; Pl.'s Dep. at 65:6-14. At that point, plaintiff asked an officer, who is not a defendant, to call the MTAs to clean and bandage his cuts, but the officer told him he did not know where they were. Pl.'s Dep. at 248:3-16. Plaintiff then used water to rinse the blood from his ankles. Id. at 249:24-250:23. The bleeding had stopped by the next morning, and the cuts eventually healed on their own without infection. Id. The swelling plaintiff claimed to have had in his hands from the handcuffing had also gone down by the morning, but plaintiff claims that they remained slightly swollen for another four or five days.

Id. at 171:1-4.

Plaintiff claims that while he was housed in Facility D, Building 5, defendant Officers Essman and Sanchez did not give him food or soap to clean the cuts on his ankles. Compl. ¶¶ 14-17. Plaintiff also claims that a correctional officer prevented the MTA from providing him with medical care for the injuries to his ankles. Id. ¶¶ 14-15.

On the evening of November 28, 2006, plaintiff was moved to Z Unit (Administrative Segregation Unit). Compl. ¶ 18; MSJ, Ex. U at AS003. He remained there until October 8, 2008, when he was transferred following his prison disciplinary conviction for the attempted murder of a peace officer. MSJ, Ex. A at CF004, CF149; MSJ, Ex. U at AS066.

Plaintiff claims that on November 28, 2006, defendant Kirkland pushed him into a holding cage, attempted to scrape his face against the cage, and directed racial epithets at him. Compl. ¶¶ 18-19. Plaintiff claims that defendant Kirkland then stripped him to only his boxers and put him in a cell that had been intentionally flooded with toilet water. Id. ¶ 21. Plaintiff claims he was not provided with dry bedding or a mattress until the evening of November 30, 2006, id. ¶¶ 25-28, and that he was not given clothing until December 1, 2006, id. ¶ 30.

Plaintiff also claims that for the next seven or eight months, defendant Kirkland, who was sometimes joined by defendants Kissinger, Sanchez, Garate, or Aurich, would pull plaintiff from his cell at least every other week for a cell search, and when plaintiff would return, his cell would be flooded with toilet water, and his property, including inmates appeals, his toothbrush, soap and bedding, would be missing or thrown in the toilet. Compl. at 13, 15-17, 21-23.*fn2

Plaintiff claims that these same defendants would also throw his dinner tray at him, not feed him, spit in his food, smash his food, withhold entrees, or run their fingers through his food. Id.

¶¶ 24, 32, 43, 44, 46, 51. Plaintiff claims that the only days he could count on receiving a dinner tray that had not been tampered with was on Sundays and Mondays, when Kirkland was not working. Id. ¶ 42.

Plaintiff was cleared for exercise on December 7, 2006. MSJ, Ex. A at CF062; Pl.'s Dep. at 274:4-13. He was supposed to exercise Monday and Wednesday mornings, and Friday afternoons. Pl.'s Dep. at 275:8-276:6. Plaintiff claims that defendant Kirkland did not allow him his afternoon exercise on Fridays. Id. at 276:3-6. Plaintiff admits that he stopped going to exercise on December 15, 2006, until sometime in January, because it was cold in the mornings. Id. at 276:19-277:2. In January, however, plaintiff claims that defendant Kirkland again refused to give him afternoon yard on Fridays. Id. at 277:1-278:4.

Plaintiff claims that he informed defendant Warden Felker about the alleged ongoing harassment from defendants. Compl. at 23. Plaintiff believes that the defendants harassed him in retaliation for his involvement in the assault on Officers Schwab and Aurich. Opp'n at 15.

Plaintiff seeks damages and an injunction preventing defendants from ever working in a facility where plaintiff is or may be housed in the future. Compl. § V.

II. Summary Judgment Standards

Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts material to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (1986). ("[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.'"). 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. In such a circumstance, summary judgment must 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.

To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.

Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand,"[w]here 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 (citation omitted); Celotex., 477 U.S. at 323 (If the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.

As noted, supra, defendants' re-filed motion for summary judgment included a notice to plaintiff informing him of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), ...


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