United States District Court, S.D. California
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [ECF NO. 37]
Mitchell D. Dembin, United States Magistrate Judge.
Report and Recommendation is submitted to United States
District Judge John A. Houston pursuant to 28 U.S.C. §
636(b)(1) and Local Civil Rule 72.1(c) of the United States
District Court for the Southern District of California. For
the reasons set forth herein, the Court
RECOMMENDS Defendant's motion for
summary judgment be GRANTED.
September 7, 2018, Plaintiff Shariffe Vaughn
(“Plaintiff”), a state prisoner incarcerated at
R.J. Donovan State Prison (“RJD”) and represented
by counsel, filed this civil complaint pursuant to 42 U.S.C.
§ 1983 against Defendant Correctional Officer A. Parker
(“Defendant”) alleging three causes of action:
(1) failure to protect, unlawful punishment, and excessive
force in violation of the Eighth and Fourteenth Amendments;
(2) negligence; and (3) battery. (ECF No. 1, hereinafter
August 1, 2019, Defendant filed the instant motion for
summary judgment. (ECF No. 37, hereinafter
“MSJ”). Defendant argues there is no evidence to
support Plaintiff's claims and Defendant is entitled to
qualified immunity. (Id. at 8-9). On September 3,
2019, Plaintiff filed a response in opposition to
Defendant's motion [ECF No. 44 (“Oppo.”)], to
which Defendant replied [ECF No. 51 (“Reply”)].
After obtaining leave of Court, Plaintiff timely filed a
sur-reply. (ECF No. 56 hereinafter “Sur-Reply”).
initial matter, the parties each object to the other's
evidence on various grounds and it is “unnecessary and
impractical . . . to methodically scrutinize each objection
and give a full analysis of each argument raised.”
Capitol Records, LLC v. BlueBeat, Inc., 765
F.Supp.2d 1198, 1200 n.1 (C.D. Cal. 2010)). Nearly all these
objections are “boilerplate recitations of evidentiary
principles or blanket objections without analysis applied to
specific items of evidence.” See Stonefire Grill,
Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1033 (C.D.
Cal. 2013) (internal quotation marks and citation omitted).
trial court can only consider admissible evidence in ruling
on a motion for summary judgment.” Orr v. Bank of
Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
District courts consider evidence with content that would be
admissible at trial, even if the form of the evidence would
not be admissible. See Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003); Block v. City of Los
Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). For these
reasons, the Court only addresses three categories of
objections raised by the parties.
Omission of Evidence
Plaintiff objects to Defendant's deposition transcript
because page 81 was omitted from the record. (ECF Nos. 37-1
at 14; 44-1 at 28). However, Plaintiff's copy of
Defendant's deposition transcript includes page 81.
(See ECF No. 44-4 at 84). Thus, the Court
OVERRULES Plaintiff's objection.
Objections to Declarations
Defendant objects to “all of the declarations relied
upon by Plaintiff (with the exception of inmates Tankersly,
Mckinley and DiDonato)” because they are based on
personal knowledge and information and belief. (Reply at 13).
Defendant contends these declarations are inadmissible
because there is no way to tell which portions of the
declarations are based on personal knowledge. (Id.).
Defendant also contends Plaintiff's declaration is a sham
declaration. (ECF No. 52 at 2).
Personal Knowledge and Information and Belief
opposition to Defendant's motion for summary judgment,
Plaintiff attaches declarations of multiple inmates.
(See ECF No. 57). Ten inmate declarations and
Plaintiff's declaration are based on their
“personal knowledge . . . except for those matters
known on information and belief.” (ECF Nos. 47, 57 at
5-18). Pursuant to Federal Rule of Civil Procedure 56(c)(4),
“declaration[s] used to support or oppose a motion must
be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the . . . declarant is
competent to testify on the matters stated.”
Fed.R.Civ.P. 56(c)(4). As such, declarations based on
information and belief in opposition to motions for summary
judgment are “entitled to no weight.” Bank
Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir.
1995). However, personal knowledge can be inferred from a
declarant's position and nature of participation in the
matter. Barthelemy v. Air Lines Pilots Ass'n,
897 F.2d 999, 1018 (9th Cir. 1990).
Court can infer Plaintiff's personal knowledge because
the declaration discusses events he personally participated
in. (See ECF No. 47 at 1-2). Additionally, the Court
can infer Elvin Hamilton's, Jonathan Mendoza's, and
Antonio Welch's personal knowledge because they declare
that they were in close physical proximity to the Plaintiff
when he was shot or were able to clearly see the incident in
question. (See ECF No. 57 at 8, 10, 13). As a
result, Defendant's objections for lack of personal
knowledge to these declarations are
OVERRULED. (See id.). The Court can
infer Henry Joseph Vasquez's and Alan
Devon's personal knowledge as to some portions,
but not all, of their declarations. (See Id. at 12,
14-18). Therefore, the Court SUSTAINS IN
PART the objection for lack of personal knowledge to
these declarations. (See id.). However, the Court is
unable to determine the remaining declarants' positions
or nature of participation in the relevant incident and
SUSTAINS Defendant's objections with
respect to D'Ron Botts', Clifford W. Campbell's,
Domingo L. Cleveland's, Morry P. Kutniewski's, and
Ernest Tillman's declarations. (See Id. at 5-9,
also objects to paragraph 13 of Plaintiff's declaration
on the grounds that it is a sham declaration. (ECF No. 52 at
2). A court may discount a sham declaration that
“flatly contradicts” prior deposition testimony
that has been provided for the sole purpose of creating a
genuine issue of material fact. Kennedy v. Allied Mut.
Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991); see
Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir.
2009). Here, Plaintiff declares that on July 25, 2017,
Tankersly “complained about how my protests were
upsetting his dayroom time and then attacked me.” (ECF
No. 47, hereinafter “Pl. Decl.” ¶ 13). At
his deposition, Plaintiff testified that Tankersly asked
“[w]hy are you messing up our program?” (ECF No.
37-6 at 38). Plaintiff also testified that inmates did not
have dayroom time during the relevant timeframe because there
was a lockdown. (Id. at 18-19). Defendant contends
this impermissibly changes the testimony to specify that the
“program” is “dayroom time.” (ECF No.
52 at 3). The Court OVERRULES
Defendant's objection because the difference between
Plaintiff's declaration and deposition testimony does not
create a genuine issue of material fact. See Yeager v.
Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (stating
that an inconsistency between a party's deposition
testimony and declaration must be clear and unambiguous to
justify striking the declaration).
Mr. Adams' Expert Report Finally, Defendant
objects to the opinion of Plaintiff's expert, Will Adams,
that Defendant was either deliberately indifferent or
negligent. (ECF No. 51 at 5; see also ECF No. 52 at
16). Plaintiff maintains that Mr. Adams' opinion is
admissible. (ECF No. 56).
Federal Rule of Evidence 702, matters of law are
inappropriate subjects for expert testimony.'”
United States ex rel. Kelly v. Serco, Inc., 846 F.3d
325, 337 (9th Cir. 2017) (quoting Hooper v. Lockheed
Martin Corp., 688 F.3d 1037, 1052 (9th Cir. 2012)).
Similarly, Federal Rule of Evidence 704(a) prohibits an
expert witness from giving an opinion “‘as to
[his] legal conclusion, i.e., an opinion on an
ultimate issue of law.'” United States v.
Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (quoting
Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1016 (9th Cir. 2004)); see also Andrews v.
Metro-North Commuter R. Co., 882 F.2d 705, 708-09 (2d
Cir. 1989) (expert in a negligence action may not testify
that a defendant was “negligent”).
Mr. Adams does not establish genuine disputes of material
fact regarding deliberate indifference or negligence; rather,
he simply draws legal conclusions from undisputed facts.
(See ECF No. 44-4 at 512-37). For example, Mr. Adams
opines Defendant was deliberately indifferent because he had
been trained in using the 40mm launcher and considered
himself a good shot, was aware of the relevant rules and
policies regarding the 40mm launcher, and had used the 40mm
launcher multiple times. (Id. at 528-29). Similarly,
he opines Defendant was negligent because he was aiming for
an inmate's thigh and hit someone's face.
(Id. at 526-27). He also speculates that Defendant
may have “reacted too quickly, ” failed to take a
stable shooting stance, or did not use the sighting system
properly. (Id. at 526-27).
the facts establish deliberate indifference or negligence is
a legal conclusion within the Court's province at the
summary judgment stage. See Andrews, 882 F.2d at
708-09 (expert in a negligence action may not testify that a
defendant was “negligent”); Pauls v.
Green, 816 F.Supp.2d 961, 979 (Idaho 2011) (striking, at
the summary judgment stage, an expert opinion that the
defendants acted with “deliberate indifference to the
rights and safety of the [plaintiffs] in the face of
well-known risks”); see also Davis v. Wash. State
Dep't of Soc. & Health Servs., No.
2:18-CV-00194-SMG, 2018 U.S. Dist. LEXIS 202795, at *17 (E.D.
Wash. Nov. 29, 2018) (same). Accordingly, Mr. Adams'
deliberate indifference and negligence opinions are
inappropriate opinions on ultimate issues of law currently
before the Court. The Court, therefore,
SUSTAINS Defendants' objection and will
not consider Mr. Adams' opinions that Defendant was
either deliberately indifferent or negligent in ruling on
Defendant's motion for summary judgment.
STATEMENT OF FACTS
July 19, 2017 at 5:30 p.m. to July 25, 2017, Plaintiff was
incarcerated at RJD and assigned to Facility C, Housing Unit
15 (“HU 15”), Section B. (ECF No. 37-6, Ex. A,
hereinafter “Pl. Depo.” at 39:2-16, 42:6-22,
62:7-9; Doc. No. 37-6, Ex. H). Inmates Tankersly and Botello
were cell mates assigned to HU 15, Section A. (ECF No. 37-6,
Ex. H). HU 15 is a two-level building with a “U”
shaped dayroom surrounded by approximately 100 cells- 50 on
each level. (ECF No. 37-3, hereinafter “Def.
Decl.” ¶ 3; ECF No. 44-4, Exs. 8-9). The dayroom
is divided into three sections-A, B, and C. (Def. Decl.
¶ 3; ECF No. 44-4, Exs. 8-9). The cells “ring the
dayroom” and the control booth is centrally located on
the second floor about fifteen feet above the dayroom. (Def.
Decl. ¶ 3; ECF No. 44-4, Exs. 8-9). The control booth is
a secured location with windows on all three sides. (Def.
Decl. ¶ 3; ECF No. 44-4, Exs. 8-9). Two medication
windows are located in Section A. (Pl. Depo. at 75: 16-76:8;
ECF No. 37-6, Ex. B and ECF No. 44-4, Ex. 1, hereinafter
“Def. Depo.” at 58:22-59:14; Shepherd Depo. at
14:2-18; ECF No. 44-4, Exs. 8-9).
was on a modified program from July 19th to the 25th.
(Id. at 62:7-9; ECF No. 37-6, Ex. D, hereinafter
“Galaviz Depo.” at 33:8-12, 34:1-10, 35:7-11,
Attach. A). The modified program permitted inmates to leave
their cells to receive medication (“pill line”).
(Pl. Depo. at 63:11-15; Galaviz Depo., Attach. A). When
medication is distributed, the control booth officer releases
inmates receiving medication for pill line. (Def. Depo. at
44:18-45:21). Pursuant to the terms of the modified program
in effect, inmates are expected to immediately return to
their cell after receiving their medication. (Def. Depo. at
Thursday, July 20, 2017 correctional officers searched HU 15.
(Pl. Depo. at 45:3-19). Following the search, Plaintiff
discovered all his property was confiscated. (Id. at
45:17-23; see ECF No. 37-6, Ex. E, hereinafter
“Shepherd Depo.” at 72:8-73:14). In response,
Plaintiff protested by lying on the dayroom floor and
refusing to return to his cell. (Pl. Depo. at 45:24-46:14).
Plaintiff protested daily in a similar fashion until July 25,
2017. (Id. at 65:23-66:12, 68:12-69:12, 78:4-12).
Plaintiff does not recall what time he protested ...