United States District Court, E.D. California
ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 122)
GARY S. AUSTIN, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). Pending before the Court is Defendants' motion for summary judgment. Plaintiff has opposed the motion.
I. Procedural History
This action was initiated by civil complaint filed on July 17, 2008. Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, naming the following individual defendants: M. Knowles; T. Arlitz; S. Frauenheim; Dr. Akanno; Kurtz; Hart; Caudillo; Playa; Meza; Urbano; Grannis; Pfeiffer; Flory; Torres; Chapman; Ethridge; J. Whitehead; D. Schroeder; S. Lantz; S. Martin; M. Northcutt; D. Caviness; A. Trujillo; P. Truitt; J. Fambrough.
On September 25, 2009, an order was entered, finding that the complaint stated a claim against Defendants Northcutt and Martin for retaliation and against Defendants Northcutt, Martin, Caviness, Lantz, Trujillo, Truitt and Fambrough for excessive force. The complaint failed to state any other claims for relief. On October 16, 2009, Plaintiff notified the Court that he was willing to proceed only on the claims identified by the Court as cognizable. On October 21, 2009, an order was entered, dismissing Plaintiff's Eighth Amendment medical care claims against Defendants Ethridge, Kurtz and Akanno, along with Plaintiff's due process claims arising from the processing if his inmate appeals. The Court also dismissed Plaintiff's negligence claim and Plaintiff's claims arising out of his disciplinary hearing. The Court dismissed Defendants Knowles, Arlitz, Frauenheim, Whithead, Schroeder, Hart, Caudillo, Playa, Meza, Urbano, Ethridge, Kurtz, Akanno, Grannis, Pfeiffer, Flory, Torres and Chapman.
On March 17, 2010, Defendants Northcutt, Trujillo, Pruitt, Fambrough and Lantz filed an answer. Defendants Caviness and Martin filed an answer on April 8, 2011. On December 9, 2011, an order was entered, dismissing Defendant Fambrough pursuant to Federal Rule of Civil Procedure 41. On February 7, 2012, Defendants Caviness, Martin, Northcutt, Trujillo and Truitt filed the motion for summary judgment that is before the Court. Plaintiff filed opposition to the motion on April 26, 2012. Defendants filed their reply on May 18, 2012.
Plaintiff's allegations arise from incidents that occurred while he was incarcerated at Kern Valley State Prison (KVSP). On October 2, 2006, Plaintiff was placed in Administrative Segregation (AdSeg). After being released from AdSeg, Plaintiff found that some of his personal property had disappeared. On November 15, 2006, Plaintiff filed an inmate appeal regarding his property.
On November 21, 2006, Defendants Northcutt and Martin approached Plaintiff because they wanted to know why Plaintiff had been talking to Lt. Whitehead the previous day. Plaintiff told Defendants Northcutt and Martin that he told Lt. Whitehead that he was having difficulty with some of the officers, including Northcutt and Martin, since filing his inmate grievance. Defendant Northcutt pepper sprayed Plaintiff and hit him in the face with the pepper spray can. Defendant Martin struck Plaintiff repeatedly with his baton. Plaintiff tried to hit back, and then lay down on the floor on his stomach. Northcutt and Martin continued to kick and punch Plaintiff. Several other officers rushed in and struck Plaintiff as well. Plaintiff was pepper sprayed again, had a bag pulled over his head, and was handcuffed. Plaintiff alleges that Defendants Caviness, Trujillo, Truitt and Fambrough kicked and struck him.
Lt. Whitehead instructed two officers to escort Plaintiff to the medical clinic, where Dr. Dileo had Plaintiff's head, left hand and rib x-rayed. Dr. Dileo also cleaned a bite wound on Plaintiff's right hand, gave him a tetanus shot and sutured the area above Plaintiff's right eye. Dr. Dileo gave Plaintiff some painkillers and a vest to wear over his rib area. Plaintiff alleges that he also had the following: a swollen left hand, fingers and wrist; lumps all over his head; scratches and abrasions on his lower back; bruises all over his body. He also bled from the cut above his right eye and from his nose and right hand. Plaintiff alleges that he suffered from blurred vision, lower back pain and nose bleeds as a result of the attack.
Plaintiff alleges that he was assaulted on November 21st in retaliation for an inmate appeal he filed against Defendant Hart on November 20, 2006, and that Defendant Northcutt confiscated his mail in retaliation for the November 21, 2006, assault. On February 4, 2007, Plaintiff filed an inmate appeal after having his incoming and outgoing mail disappear, and after finding that Defendant Northcutt had been reassigned to the mail room after the November 21, 2006, incident.
III. Summary Judgment Standard
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 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).
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. 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 denial 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. Rule 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 governing law, Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Matsushita, 475 U.S. at 588; County of Tuolumne v. Sonora Community Hosp., 263 F.3d 1148, 1154 (9th Cir. 2001).
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." Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). 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 notes 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. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). 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. 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 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 not genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
IV. Excessive Force
Defendants argue that Plaintiff's excessive force claim is barred by the application of the doctrine set forth in Edwards v. Balisok, 520 U.S. 641 (1997). In Edwards v. Balisok, the Supreme Court held that Heck v. Humphrey, 512 U.S. 477 (1994) applied to actions "challenging the validity of the procedures used to deprive an inmate of good-time credits...." 520 U.S. at 643. Stated another way, a section 1983 claim is barred if "the plaintiff could prevail only by negating an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002)(citing Heck, 512 U.S. at 487 n. 6). When the section 1983 claim does not necessarily implicate the underlying disciplinary action (or criminal conviction), it may proceed. See Muhammad v. Close, 540 U.S. 749, 754-55 (2004).
Defendants' Exhibit E2 is an authenticated copy of the hearing on Plaintiff's Rules Violation Report log no. FD-06011-0055, dated January 1, 2007. Plaintiff was found guilty of a violation of Title 15, Section 30055, of the California Code of Regulations, Battery on a Peace Officer, a Division B offense. The finding was based on a preponderance of the evidence submitted at the hearing, including the following:
1. The Reporting Employee's written report, wherein Correctional Officer M. Northcutt reported: "Underwood then lunged at me and struck my right eye with his left fist. I stepped back and sprayed Underwood in the facial area with a burst of O.C. Pepper Spray. I then attempted to force Underwood down to the floor when he struck me again with his fist on the left side of my head."
2. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Officer D. Caviness reporting: "Innmate Underwood was thrashing about from side to side and kicking out while attempting to get up."
3. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Officer S. Martin reporting: "Northcutt drew his MK-90 when Underwood lunged at him striking him in the facial area. Northcutt and I ordered Underwood to get down. With negative results we grabbed him to attempt to take him down, when Underwood started to swing furiously out of control striking Northcutt and myself on the side and upper head area. Counselor J. Flory responded to our assistance."
4. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Counselor I J. Flory reporting: "I saw Inmate Underwood holding onto Officer M. Northcutt. I ordered Underwood to get down on the ground to which he refused. I attempted to place Underwood's left arm behind his back and take him to the ground, however I was unable to gain compliance due to his size and strength. I was then pushed back into the wall near the B Section door at which time my glasses were knocked off my face. Underwood struck me in the groin area with his left knee."
5. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Sergeant S. Lantz reporting: "I saw Officers M. Northcutt, S. Martin, and CCI J. Flory on the ground in front of the B section door struggling with Inmate Underwood. I observed Underwood pushing himself up off the ground ignoring orders to stop resisting and cuff up."
6. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Officer J. Urbano reporting: "I saw Inmate Underwood strike Officer M. Northcutt in the face and began swinging his clenched fist at the officers."
7. Crime/Incident Report CDCR 837 Part C Staff Report authored by Correctional Officer N. Meza reporting: "I turned around and observed Inmate Underwood K84486, Officer M. Northcutt, Officer S. Martin and Correctional Counselor Flory wrestling on the floor in rotunda in front of B pod door."
8. CDC 7219 Medical Report of Injury or Unusual Occurrence completed by RN J. Key on CC1 J. Flory reflecting reddened area to the right eye.
9. CDC 7219 Medical Report of Injury or Unusual Occurrence completed by RN F. Rodriguez on Officer S. Martin reflecting the following: reddened area to the forehead, cut/laceration/slash to the front of the right leg, abrasion/scratch to the right arm.
10. CDC 7219 Medical Report of Injury or Unusual Occurrence completed by RN J. Key on Officer M. Northcutt reflecting bruise/discolored/pain/reddened/swollen area to the right eye.
11. In accordance with California Code of Regulations (CCR), Title 15, Section 3055(c), Inmates shall not willfully commit or assist another person in the commission of a violent injury to any person or persons, including self-mutilation or attempted suicide, nor attempt or threaten the use of force or violence upon another person. Inmates shall not willfully attempt to incite others, either verbally or in writing, or by other deliberate action, to use force or violence on another person.
12. Staff Reports listed above details Underwood striking and resisting Officers Northcutt, Martin and CC1 Flory. I believe a reasonable person reviewing the written reports listed above would conclude Inmate Underwood committed battery on a peace officer.
13. It is reasonable to conclude based on the evidence therefore that Underwood committed Battery on a Peace Officer and is culpable.
DISPOSITION: Found Guilty. Assessed One Hundred Fifty (150) days loss of behavioral/work credit consistent with the schedule provided in the California Code of Regulations (CCR), Title 15, Section 3323 (Disciplinary Credit Forfeiture Schedule) for a Division B' Offense.
"A state prisoner cannot use a § 1983 action to challenge the fact or duration of his confinement, ' because such an action lies at the core of habeas corpus.'" Simpson v. Thomas, 528 F.3d 685, 693 (9th Cir. 2008)(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). Thus, where a § 1983 action seeking damages alleges constitutional violations that would necessarily imply the invalidity of a conviction or sentence, the prisoner must first establish that the underlying sentence or conviction has already been invalidated on appeal, by a habeas petition, or terminated in his favor via some other similar proceeding. Heck, 512 U.S. at 438-37. This "favorable termination" rule applies to prison disciplinary proceedings, if those proceedings resulted in the loss of good-time or behavior credits. Balisok, 520 U.S. at 646-48 (holding that claim for monetary and declaratory relief challenging validity of procedures used to deprive prisoner of good-time credits is not cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)(explaining that "a state prisoner's § 1983 action is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) if success in that action would necessarily demonstrate the invalidity of confinement or its duration" (emphasis omitted)). Stated another way, a § 1983 claim is barred if the "plaintiff could prevail only by negating an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002)(citing Heck, 512 U.S. at 487 n. 6). However, when the § 1983 claim does not necessarily implicate the underlying disciplinary action (or criminal conviction), it may proceed. See Muhammad v. Close, 540 U.S. 749, 754-55 (2004).
In several cases, the Ninth Circuit has applied Heck's favorable termination requirement to consider, and sometimes preclude, excessive force claims brought pursuant to 42 U.S.C. § 1983. For example, in Cunningham, the Ninth Circuit found § 1983 excessive force claims filed by a prisoner who was convicted of felony murder and resisting arrest were barred by Heck because his underlying conviction required proof of an "intentional provocative act" which was defined as "not in self-defense." 312 F.3d at 1152. A finding that police had used unreasonable force while effecting the plaintiff's arrest, the court held, would "call into question" the validity of factual disputes which had necessarily already been resolved in the criminal action against him. Id. at 1154. However, in Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), the Ninth Circuit considered whether excessive force allegations of a prisoner who pled guilty to resisting arrest pursuant to Cal. Penal Code § 148(a)(1) were also barred by Heck and found that "Smith's § 1983 action was not barred... because the excessive force may have been employed against him subsequent to the time he engaged in the conduct that constituted the basis for his conviction." Id. at 693. Under such circumstances, the Ninth Circuit held Smith's § 1983 action "neither demonstrated nor necessarily implied the invalidity of his conviction." Id.; see also Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir. 2001)("If the officer used excessive force subsequent to the time Sanford interfered with the officer's duty, success in her section 1983 claim will not invalidate her conviction. Heck is no bar."); Hooper v. County of San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011)(holding that a conviction for resisting arrest under Cal. Penal Code § 148(a)(1) does not "bar a § 1983 claim for excessive force under Heck if the conviction and the § 1983 claim are based on different actions during one continuous transaction'").
Here, unlike the defendants in Cunningham, Defendants have not shown that Plaintiff's excessive force claims against them are necessarily inconsistent with his adjudication of guilt for battery on a peace officer. Thus, this court cannot say that Plaintiff's excessive force claims "necessarily imply the invalidity" of his battery conviction. Heck, 512 U.S. at 487. The factual context in which the force was used is disputed. Thus, even though Plaintiff was found guilty of willfully committing a violent injury upon a peace officer by hitting Northcutt in the eye, Defendants Northcutt, Martin, Caviness, Trujillo and Truitt could, if Plaintiff's testimony is believed, nevertheless be found liable for responding "maliciously and sadistically" with the intent to cause him harm. See Hudson v. McMillian, 503 U.S. at 1, 7 (1992); Simpson v. Thomas, No. 2:03-cv-0591 MCE GGH, 2009 WL1327147 at *4 (E.D. Cal. May 12, 2009)(success on the plaintiff's Eighth Amendment excessive force claim would not necessarily invalidate his battery conviction pursuant to Cal. Code Regs., tit. 15 § 3005(c) because "even if Defendant acted unlawfully by using excessive force, Plaintiff could still have been guilty of battery"); accord Gipbisn v. Kernan, No. CIV S-07-0157 MCE EFB P, 2011 WL 533701 at *5-6 (E.D. Cal. 2011); Gabalis v. Plainer, No. CIV S-09-0253-CMK, 2010 WL 4880637 at *7 (E.D. Cal. 2010)("It is possible for defendants to have used excessive force and for plaintiff to have attempted to assault a correctional officer. Thus, success on plaintiff's civil rights claims would not necessarily imply that the guilty finding and resulting loss of good-time credits is invalid."); Candler v. Woodford, No. C 04-5453 MMC, 2007 WL 3232435 at *7 (N.D. Cal. Nov. 1, 2007)("Because defendants have not shown that a finding of their use of excessive force would necessarily negate an element of the battery offense, the Court cannot conclude that plaintiff's claims are barred under Heck"). Defendants' motion should therefore be denied on the ground that Plaintiff's excessive force claim is barred by Heck.
Plaintiff alleges that he was assaulted on November 21, 2006, in retaliation for an inmate appeal he filed against Hart on November 20, 2006, and that Defendant Northcutt confiscated his mail in retaliation for the November 21, 2006, assault. On February 4, 2007, Plaintiff filed an inmate appeal after having his incoming and outgoing mail disappear, and after finding that Defendant Northcutt had been reassigned to the mailroom after the November 21, 2006, incident.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Court must "afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)(quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). The burden is on ...