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Joshua Daniel Mills v. George Malim

March 28, 2013


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Doc. Nos. 12, 18, 20, 87. It is proceeding on four of five claims raised in plaintiff's original complaint, filed July 14, 2011 (hereafter "Complaint").*fn1 The events at bar arose from a period when plaintiff was incarcerated at the Placer County Jail. Plaintiff's first claim is that on July 14, 2009 defendant Correctional Officers White and Williams subjected plaintiff to excessive force. Plaintiff's second claim is that defendants Malim, Vladesov, Hendricks, and Duncan acted with deliberate indifference to plaintiff's serious medical needs by refusing to allow him to wear prescription dark sunglasses to alleviate the migraine headaches from which plaintiff suffered due to the fluorescent lights in the jail. Plaintiff's third claim is that defendant Deputy Glenwinkel subjected plaintiff to a sexually inappropriate pat down search. Plaintiff's fifth claim is that jail staff improperly monitored his confidential communications with his criminal defense attorney.

On May 7, 2012, defendants Glenwinkel, Malim, White, and Williams filed a motion for summary judgment on all four of the remaining claims.*fn2 On May 18, 2012, defendants Duncan and Hendricks moved for summary judgment on plaintiff's Eighth Amendment claim arising from the alleged inadequate medical care. On December 7, 2012, defendant Vladesov joined in the May 7, 2012 motion for summary judgment of defendants Glenwinkel, Malim, White and Williams. On December 31, 2012, plaintiff filed an opposition to both motions. On January 7, 2013, defendants Duncan and Hendricks filed a reply brief. On January 14, 2013, defendants Glenwinkel, Malim, White, Williams, and Vladesov filed a reply brief and objections to some of the evidence tendered by plaintiff in opposition to their motion for summary judgment.*fn3

SUMMARY JUDGMENT STANDARDS UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a 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 (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. "[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.

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 (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. 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 (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 (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. 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). Finally, 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 (citation omitted).

ANALYSIS I. Excessive Force

Defendants White and Williams seeks summary judgment on plaintiff's claim that they subjected him to excessive force in violation of the Eighth Amendment on the ground that the use of force was in good faith to restore discipline. Plaintiff disputes their contention.

A. Facts

On July 14, 2009, plaintiff was out of his cell in the Placer County Jail on an upper tier. Declaration of Officer Butcher filed May 7, 2012 (Butcher Decl.), at ¶ 5; Declaration of Joshua Daniel Mills in Support of Opposition to Motion for Summary Judgment filed December 31, 2013 (Mills Decl.), at ¶ 9. Officer Butcher told plaintiff not to be on the top tier. Butcher Decl. at ¶ 6; Mills Decl. at ¶ 9.

Defendants contend that thereafter the following occurred. Plaintiff responded to Officer Butcher's order by saying, "Fuck that! This is my dayroom time, and I'll do whatever the fuck I want!" Butcher Decl. at ¶ 7. Officer Butcher told plaintiff his dayroom was over and to lock down. Id. at ¶ 8. Plaintiff responded "I ain't fucking locking down! I live here, and I'll do what the fuck I want during my dayroom time! If you don't want me up here, come in here and handle it yourself!" Id. Officer Butcher took this as a threat and radioed for assistance from other officers. Id. at ¶¶ 9-10. Defendants Williams and White and two other officers responded. Id. at ¶ 10. Plaintiff, who was standing in a doorway that leads into a dayroom, refused to comply with orders to sit down, and he "used profane language combined with aggressive posturing toward the responding officers." Id. at ¶ 11. Plaintiff "had a history of assaulting jail staff and was classified as a two officer move." Id. The door into the dayroom was opened and officers intended to use pepper spray to get plaintiff to comply. Id. at ¶ 12. Plaintiff took a step away from the door and said, "Yeah, spray me! C'mon!" Id. Plaintiff "backpedaled into the dayroom" and the four officers rushed him. Id. at ¶ 13. Plaintiff attempted to hit one of the officers and defendant White "delivered distraction strikes toward [plaintiff's] torso." Id. at ¶ 14. Plaintiff was taken to the ground and refused to submit to handcuffs. Id. Defendant Williams struck plaintiff twice on the left leg. Id. Plaintiff was then placed in handcuffs and taken from the dayroom. Id. Neither defendant White nor defendant Williams hit or struck plaintiff after he stopped resisting. Id.

Plaintiff reports a different version of events. He avers that after Officer Butcher told him plaintiff could not be on the top tier plaintiff "went to the door downstairs to wait for the sergeant." Mills Decl. at ¶ 9. While he was waiting, "the door popped and [he] was charged by four correctional officers." Id. "Defendant White struck [plaintiff] in the face repeatedly. Defendant Williams struck [plaintiff] with the baton while I was completely restrained on the floor." Id. Plaintiff was wearing shower shoes and never performed "any 'martial art' moves when the officers entered since [he] was immediately restrained once the door popped." Id. at ¶

10. Plaintiff "never once attempted to hit any of the officers prior to being assaulted by them."

Id. No criminal charges were filed against plaintiff as a result of this incident. Declaration of Julia M. Young in Support of Opposition to Motion for Summary Judgment, filed December 31, 2012 (Young Decl.), at ¶ 15. On August 10, 2009, Ms. Young filed a complaint with the Placer County Sheriff's Department concerning the July 14, 2009 incident. Id. at ¶ 14. Plaintiff was transferred to California State Prison-Sacramento (CSP-Sacramento) on August 12, 2009. Id.

B. Legal Standards

The use of excessive force by a prison official violates the ...

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