United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. The parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff raises Eighth Amendment claims against defendants Rosario and Slupski, and Fourteenth Amendment claims against defendants Peterson and Swarthout. Defendants' motion for summary judgment is before the court. As set forth more fully below, the undersigned finds that defendants' motion for summary judgment is denied in part, and granted in part.
II. Plaintiff's Complaint
In his verified complaint, plaintiff alleges that while he was incarcerated at California State Prison in Solano, California ("CSP-SOL") on September 12, 2011, defendant Rosario used excessive force on plaintiff, in violation of the Eighth Amendment, by pepper spraying and throwing plaintiff on the ground without provocation during a cell search. Plaintiff alleges that defendant Slupski was deliberately indifferent to plaintiff's safety, and failed to protect plaintiff, by failing to ensure that the reason for defendant Rosario's September 12, 2011 "raid" on plaintiff was valid, and for failing to review the visiting room videotape before allowing defendant Rosario to "raid" plaintiff's cell on September 12, 2011, all in violation of the Eighth Amendment. Plaintiff also alleges that defendants Peterson and Swarthout violated plaintiff's due process rights because they were allegedly biased in their decision-making, and refused to consider the visiting videotape from the weekend prior to September 12, 2011.
III. Defendants' Motion for Summary Judgment
Defendants move for summary judgment on the grounds that because plaintiff was found guilty in a disciplinary proceeding of resisting or obstructing defendant Rosario, resulting in the use of force, the excessive force claim against defendant Rosario is barred under Edwards v. Balisok, 520 U.S. 641, 648 (1997). Defendants contend that plaintiff's Eighth Amendment claim against defendant Slupski fails because no evidence shows that he knew of defendant Rosario's intentions before the alleged use of force, or that defendant Slupski failed to intervene once the alleged unlawful force was used. Defendants argue that because plaintiff contends defendant Slupski is responsible solely on a theory of respondeat superior, and there is no evidence showing that defendant Slupski participated in the use of force, knew of defendant Rosario's alleged use of excessive force and failed to prevent it, and there is no policy at issue, defendant Slupski is entitled to summary judgment. (ECF No. 41-1 at 9.)
Defendants contend that plaintiff's due process claims fail because plaintiff was provided all the process due. Although plaintiff asserts that defendant Peterson refused to obtain video footage of the visiting room from the weekend before September 12, 2011, defendants point out that plaintiff admitted at his deposition that defendant Peterson called visiting during the October 11, 2011 disciplinary hearing, and confirmed that plaintiff did not have a visitation that weekend. (ECF No. 41-1 at 11.) As to defendant Swarthout, defendants contend that plaintiff conceded that defendant Swarthout was not present at the disciplinary hearings and plaintiff did not speak to defendant Swarthout about the cell incident or the disciplinary proceedings. (ECF No. 41-1 at 11.) Moreover, defendants contend that during his deposition plaintiff changed the theory of liability to defendant's role in the administrative appeal process, but that such new theory fails to state a cognizable due process claim. (ECF No. 41-1 at 12.)
Finally, defendants Slupski, Peterson, and Swarthout argue that they are entitled to qualified immunity because defendants did not violate plaintiff's rights, but that in any event, reasonable prison officials in their positions would have believed their actions were lawful. (ECF No. 41-1 at 13-14.)
Plaintiff contends that his excessive force claim against defendant Rosario is not barred under Heck v. Humphrey, 512 U.S. 477, 487 (1994), because the incident did not result in a criminal conviction, and his underlying criminal convictions were unrelated and occurred many years earlier. As to the disciplinary hearing, plaintiff contends that the fact that the hearing officer confirmed that plaintiff was not in visiting the weekend before the cell search, demonstrates that the rules violation report contained a false statement: the sworn officer report stating that the September 12, 2011 search of plaintiff's cell was related to defendant Rosario's alleged observation of suspicious activity by plaintiff while in visiting the preceding weekend. (ECF No. 46 at 10.) If plaintiff was not in visiting, as the hearing officer confirmed, plaintiff argues the hearing officer was put on notice that the sworn officer report against plaintiff was perjured. Plaintiff argues that the hearing officer was obligated to inquire into the false report, and his failure to do so demonstrates that he was biased against plaintiff and the officer's decision was arbitrary, in violation of plaintiff's due process rights. Finally, plaintiff contends defendants are not entitled to qualified immunity.
In reply, defendants argue that notwithstanding plaintiff's misapprehension of the application thereof, plaintiff's excessive force claim against defendant Rosario is barred by the favorable termination rule under Balisok, 520 U.S. at 648, because success on the claim will necessarily invalidate plaintiff's guilty finding in the prison disciplinary proceedings. (ECF No. 47 at 2.) Defendants point out that plaintiff failed to dispute that defendant Swarthout did not participate in the disciplinary proceedings, and argue that plaintiff's disagreement with defendant Swarthout's sworn statement is not evidence, and is insufficient to raise a factual dispute in connection with plaintiff's due process claim against Swarthout.
Defendants contend that plaintiff's claim that defendant Peterson's confirmation that plaintiff was not in the visiting room was sufficient to require Peterson to investigate the veracity of defendant Rosario's report is unavailing for several reasons. First, defendant Rosario's report did not state that he saw plaintiff in the visiting room the weekend before the incident. Second, defendant Peterson explained that the reason for the search was not relevant to plaintiff's obligation to comply with a direct order. Third, plaintiff cited no evidence to show that defendant Peterson knew that any part of defendant Rosario's report was false. Finally, defendants argue that plaintiff's reliance on Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), is misplaced because Hines arose in the context of a retaliation claim, not a due process context where, as here, the deferential "some evidence" standard applies. (ECF No. 47 at 3.) Defendants contend that the undisputed evidence shows that defendant Peterson had ample evidence from which to find plaintiff guilty.
On January 13, 2015, plaintiff was granted leave to submit a declaration on the merits of his opposition to the motion for summary judgment. (ECF No. 48.) On February 10, 2015, he was granted an extension of time, but on March 12, 2015, plaintiff filed a notice that he declined to submit a declaration and would rely on the previously-submitted documents. (ECF No. 52.)
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).
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 then-numbered Fed.R.Civ.P. 56(c)). "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
Consequently, 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 such a dispute exists. See Fed.R.Civ.P. 56(c); 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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).
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 630. 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 a 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 586 (citation omitted).
By contemporaneous notice provided on July 3, 2014 (ECF No. 42), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) ( en banc ); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
1. At all relevant times, plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and housed at CSP-SOL in Facility 1, Building 2, cell 132. Inmate Watts was plaintiff's cellmate.
2. Defendant Rosario was a Yard and Visiting Officer, and Defendant Slupski was a Sergeant on the yard at CSP-SOL.
3. At approximately 9:38 a.m., Rosario and Slupski approached plaintiff's cell to conduct a search.
4. Defendant Slupski authorized a search of plaintiff's cell, based on information and belief that plaintiff was in possession of contraband.
5. Before September 12, 2011, plaintiff was aware that prison regulations authorized custody staff to conduct random searches without prior notice and that inmates are required to cooperate with staff. (ECF No. 41-4 at 55; Pl.'s Depo. at 32.)
6. As defendants approached cell 132, defendant Slupski was walking a few feet behind defendant Rosario. (ECF No. 41-3 at 1-2.)
7. When the cell door opened, defendant Slupski heard defendant Rosario give plaintiff an order for him to show defendant Rosario his hands. (ECF No. 41-3 at 2.)
8. Defendant Slupski saw defendant Rosario shoot pepper spray into the cell. Because defendant Rosario was standing at the doorway, defendant Slupski's view was obstructed, and he did not see where the pepper spray landed. (ECF No. 41-3 at 2; Pl.'s Depo. at 44.)
9. When defendant Slupski arrived at the door, defendant Rosario was still in the doorway, the toilet was flushing, and plaintiff appeared to have pepper spray on him. (ECF No. 41-3 at 2.) Defendant Slupski saw plaintiff hunched over the toilet (Id.), but plaintiff claims he was never at the toilet.
10. Defendant Slupski states that plaintiff backed away from the toilet and sat down on the lower bunk (ECF No. 41-3 at 2), but plaintiff ...