United States District Court, S.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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
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.
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
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
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.
The Court Has Authority to Reconsider Its Own Orders
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 ...