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Torbert v. Gore

United States District Court, S.D. California

July 21, 2017

WILLIAM D. GORE, Sheriff of San Diego Sheriff Department; DEPUTY DAILLY, Sheriff of San Diego Sheriff Department; DEPUTY McMAHON, Sheriff of San Diego Sheriff Department; DEPUTY Y.G. GEBREBIORGIS, Sheriff of San Diego Sheriff Department; SERGEANT ESTRADA, Sheriff of San Diego Sheriff Department; COUNTY OF SAN DIEGO; and DOES 1-50, Defendants.



         Plaintiff Javon Lamar Torbert, a state prisoner proceeding pro se and in forma pauperis, brought this action under 42 U.S.C. § 1983, asserting claims under state law and for violations of the Eighth Amendment arising from two alleged incidents. On October 26, 2016, this Court adopted the Magistrate Judge's report and recommendation on Defendants' motion for summary judgment. (MSJ Order, ECF No. 109). The order granted Defendants' motion in part, leaving only Plaintiff's claim for excessive force against Defendant Deputy James Dailly to go to trial. Now, upon reconsideration of its summary judgment order, the Court grants summary judgment to Defendant Dailly and dismisses the remaining claim.

         I. Factual Background

         Plaintiff's remaining claim for excessive force arises out of incident on October 2, 2014 at Vista Detention Center when Defendant Dailly closed a cell door that allegedly hit Plaintiff's left forearm. Video footage captured the incident.

         On the day of the incident, Plaintiff was causing tension in Medical Ward 2, where he was being housed with other inmates. He was pacing back and forth, without the use of his cane, for several minutes and was yelling and disturbing the other inmates. Deputy Estrada told Plaintiff to gather his belongings so he could move to a different cell. Plaintiff did not submit to handcuffing through the cell door and, consequently, Deputy Dailly and Deputy McMahon entered Medical Ward 2 to calm Plaintiff and escort him to another cell. Deputy Dailly picked up Plaintiff's cane, which had been hanging on his bunk bed. Deputy Dailly states that given Plaintiff's unpredictable behavior and that he had been walking without the cane, Dailly took the cane for safety reasons to ensure Plaintiff did not use it as a weapon. Plaintiff gathered his belongings.

         A couple minutes later, several other deputies arrived in Medical Ward 2. Deputies McMahon and Estrada declared that Plaintiff had said they would need more deputies to assist with Plaintiff's transfer, which they perceived to be a threat. With the other deputies there, Deputy Dailly returned the cane to Plaintiff so he could walk to the medical isolation cell.

         When they reached the medical isolation cell, Plaintiff faced the wall opposing the door while Deputy Dailly unlocked the door. With the door open, Plaintiff turned and began to walk into the cell. The video footage shows that as Plaintiff entered the new cell, his arm remained outstretched-either maintaining a grasp on the cane or trying to reach for the cane that Dailly had in his own grasp-when Dailly closed the cell door. Deputy Dailly declares that he sought to take the cane as he was concerned Plaintiff might use it as a weapon. It appears the door hit the cane handle or part of Plaintiff's appendage prior to latching. The door moved forward to close, slightly retreated backward upon coming into contact with something, and then resumed its forward travel and latched. Dailly appeared to use average force to close the cell door. The incident took place over three seconds.

         Plaintiff states that, as a result of the door hitting him, his forearm was swollen and his fingers could not squeeze anything. He pushed the emergency button for help. Deputy McMahon and Dr. Alfred Joshua, Chief Medical Officer of the San Diego Sherriff's Department, declare that medical staff were unable to treat Plaintiff that night because he was acting unpredictably. However, Deputy Dailly provided Plaintiff with three Tylenols that evening.

         The next morning, on October 3, 2014, Dr. Martinez examined Plaintiff's forearm and ordered an X-ray to rule out a fracture. On October 4, 2014, Plaintiff complained of chest pain and was taken to Tri City Medical Center. Cardiac tests were negative, and X-ray images of his left wrist and forearm were negative for fractures. At the time, Plaintiff was taking three pain medications. He received a sling for his arm.

         On October 7, 2014, a jail nurse examined Plaintiff and noted that he was able to move his left fingers and that he remained on pain medications. Fifteen days after the incident, on October 17, 2014, Dr. Serra examined Plaintiff and noted that he was no longer taking two of the three pain medications. That same day, Deputy Brown observed Plaintiff doing pull-ups and push-ups in the medical housing unit. He warned Plaintiff that working out is not permitted in the medical ward. Deputy Brown prepared a report detailing the incident.

         On October 21, 2014, Dr. Sadler examined Plaintiff, the fourth physician to examine his forearm. Plaintiff requested a referral to a neurologist for nerve damage to his arm, which Dr. Sadler thought unwarranted given her exam of him. Medical records indicate that Plaintiff complained that his left elbow had been hurting since he started doing push-ups. Plaintiff sought pain medication, but refused Motrin. Dr. Sadler noted that Plaintiff showed decreased strength in his left arm but suspected it was due to poor effort on Plaintiff's part. The records also indicate that Plaintiff had been using his left hand spontaneously and was using his arm without difficulty when not being examined.

         II. Legal Standards

         a. The Court Has Authority to Reconsider Its Own Orders

         The Court can reconsider its previous orders sua sponte. See United States v. Smith, 389 F.3d 944, 949 (9th Cir. 2004). Federal Rule of Civil Procedure 54(b) provides that “any order or other decision . . . that adjudicates fewer than all the claims . . . of fewer than all the parties . . . may be revised at any time before the entry of . . . judgment.” Fed.R.Civ.P. 54(b). And Federal Rule of Civil Procedure 60(a) stipulates that the “court may correct . . . a mistake arising from oversight or omission whenever one ...

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