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Kropp v. Scott

United States District Court, N.D. California

September 23, 2019




         This is a pro se prisoner’s civil rights action under 42 U.S.C. § 1983 in which Matthew Kropp alleges that correctional officer Jeffrey Scott subjected him to cruel and unusual punishment by shooting him when he was fighting with other inmates. Defendant now moves for summary judgment on the merits of Kropp’s claim and on the defense of qualified immunity. Kropp does not oppose the motion. For the reasons discussed below, defendant’s motion for summary judgment will be granted and judgment will be entered in his favor.


         The following facts are undisputed unless otherwise noted:

         The events and omissions giving rise to the complaint occurred on the Facility A yard at Pelican Bay State Prison, a maximum-security prison, on March 9, 2017. The Facility A yard has an upper yard and a lower yard, separated by a fence with a gate. On the relevant date, plaintiff Matthew Kropp was a prisoner, and defendant Jeffrey Scott was a correctional officer, at Pelican Bay. Docket No. 1 at 2.

         The CDCR’s use-of-force policy, as relevant here, states that “deadly force will only be used when it is reasonably necessary to . . . [d]efend the employee or other persons from an imminent threat of death or great bodily injury.” 15 Cal. Code Regs. § 3268(d)(1).

         A. A Violent Morning on the Facility A Yard

         The fight Kropp engaged in was the second fight on the yard that morning and followed quickly after a first fight was underway. The first fight began at about 9:12 a.m. on the lower yard when inmates Sanchez, Aranda, and Chacon attacked inmate Galvan. The three attacking inmates beat and stabbed inmate Galvan, who attempted to shield himself from the attack. Galvan later died from his injuries.

         The Facility A yard observation tower issued an order for all inmates on the yard to get down. The fighting inmates did not comply, although other inmates did get down as ordered. Several officers stationed on the yard responded, deploying grenades of chemical agents toward the fighting inmates. The first grenade landed within about 10 feet of the fight but had no apparent effect on the fighting inmates. The next two grenades landed within a couple of feet of the fighting inmates and had an effect; the inmates dispersed and assumed prone positions on the ground.

         Within a couple of minutes after the first fight started in the lower yard, another fight erupted on the upper yard. The parties disagree as to the particulars of that second fight, which was captured on video recordings.

         B. The Video Evidence

         Defendant Scott submitted a CD with video footage of the Facility A yard from three camera locations, two of which captured the fight in which Kropp was engaged. The video quality is not particularly good and there is no sound track. It may have been raining that morning as the yard appears to have puddles in several locations and some of the inmates were wearing long yellow raincoats. The parties agree that Kropp abruptly was thrown backwards from the fight when he was hit by the first shot fired by Scott; using that information, one can see Kropp’s role in the fight.

         The video excerpt marked “CH 4” shows Kropp’s fight at the left edge of the frame. The fight is already underway when the inmates first appear onscreen. Two inmates in white t-shirts are beating another inmate in a yellow coat who is on the ground. (Kropp was later identified as one of the inmates in the white t-shirts.) One inmate in a white t-shirt is standing and punching the inmate in the yellow coat; the other inmate in a white t-shirt is kneeling and punching the inmate in the yellow coat. The inmate in the yellow coat does not appear to throw any punches. The attack by the two inmates in white t-shirts continues for about 47 seconds until one of those two inmates abruptly moves backwards away from the fight and falls to the ground a few feet away. The other inmate in the white t-shirt continues punching the inmate in the yellow coat for a few more seconds until the attacking inmate lies down when correctional officers show up and a cloud of smoke erupts in the area. Within a couple of minutes, several people carrying equipment bags run over to the area and go to the man who had been thrown backwards away from the fight. Two other people arrive with a gurney.

         The video excerpt marked “CH 2” appears to show the first fight, and then the camera pans over to the second fight, just as correctional staff and a puff of smoke (as from a grenade) arrive at the scene. This video also shows the staff members approaching with equipment bags and two people bringing a gurney. The video also shows the inmate in the yellow raincoat being escorted away from the scene by correctional staff.

         C. Kropp’s Version

         According to Kropp, he was standing in line waiting to use a urinal when he felt someone hit him from behind. Kropp “fell to the ground and immediately got back to his feet and started to defend himself by throwing closed fist punches at (2) inmates he felt were attacking him. All (3) inmates were exchanging closed fist punches in this incident mutually” that did not involve weapons. Docket No. 1 at 3-4; see also Id . at 9 (“all inmates involved exchanged mutual closed fist punches”). Suddenly, Kropp “heard a loud noise and felt something very powerful hit him. He was immediately thrown back at least 10-12 feet from the other (2) inmates.” Id. at 4. While on the ground, he heard another loud noise and felt something powerful hit him once again. Several correctional officers arrived and one of them informed Kropp he had been shot. Id. Kropp later learned that Scott was the officer who shot him two times “in short succession[].” Id. ...

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