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Vaughn v. Parker

United States District Court, S.D. California

October 16, 2019



          Hon. Mitchell D. Dembin, United States Magistrate Judge.

         This 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.


         On 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 “Compl.”).

         On 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).[1] 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”).


         As an 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).

         “A 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.[2]

         A. Omission of Evidence

         First, 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.

         B. Objections to Declarations

         Second, 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).

         1. Personal Knowledge and Information and Belief

         In 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).

         The 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[3] and Alan Devon's[4] 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, 11).

         2. Sham Declaration

         Defendant 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).

         C. 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).

         “‘Under 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”).

         Here, 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).

         Whether 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.


         From 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).

         HU 15 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 78-24-79:3).

         On 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 ...

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