Altheide v. Kleuczar

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 JASON ARTHUR ALTHEIDE, Case No. 2:16-cv-02272-RFB-NJK 8 Plaintiff, ORDER 9 v. 10 THOMAS KLENCZAR, et al., 11 Defendants. 12 13 I. INTRODUCTION 14 Before the Court is Defendants’ Motion for Summary Judgment (ECF No. 103) and 15 Plaintiff’s Motion for Default and Cross Motion for Summary Judgment (ECF No. 115). 16 Following screening of the First Amended Complaint, the following claims proceeded against 17 Defendants: Deliberate Indifference against Mike Gray, Dave Boruchowitz, and Sharon Wehrly 18 (Count II); Deprivation of Property against Gray, Harry Means, and Boruchowitz (Count V); 19 Procedural Due Process against Means, Boruchowitz, Gray, and Wehrly (Count VII); Deliberate 20 Indifference against Boruchowitz, Gray, and Wehrly (Count VIII); Excessive Force against Joshua 21 Bissell (Count VIII); and Procedural Due Process against Boruchowitz and Wehrly (Count IX). 22 ECF Nos. 11, 35. 23 For the reasons stated below, the Court grants in part and denies in part Defendants’ 24 motion and denies Plaintiff’s motion. 25 26 II. FACTUAL BACKGROUND 27 a. Undisputed Facts 28 The Court finds the following facts to be undisputed. 1 i. Pretrial Detention Dates 2 Plaintiff was detained at Nye County Detention Center (“NCDC”) multiple times during 3 the summer of 2014. Plaintiff was arrested on June 29, 2014 and released on August 2, 2014. 4 Plaintiff was arrested again on September 16, 2014 and released on September 17, 2014. On 5 September 20, 2014, Plaintiff was arrested again and remained in custody until December 14, 6 2016. Plaintiff was a pretrial detainee throughout each of these periods of custody. 7 ii. Facts Relevant to Count II 8 At the time of Plaintiff’s first arrest in June 2014, Plaintiff had psychiatric medications 9 prescribed to him. Plaintiff did not receive his prescribed psychiatric medication when in custody 10 from June 2014 to February 2015. In early February 2015, Plaintiff was evaluated at the Lake’s 11 Crossing medical facility. This evaluation was the first psychiatric attention Plaintiff received 12 while detained at NCDC. Following the February 2015 evaluation, Plaintiff began receiving 13 psychiatric treatment and was administrated psychiatric medications. 14 iii. Facts Relevant to Count V 15 In late October 2015, NCDC switched to a new canteen provider, which assessed sales tax 16 on uncooked food. Plaintiff notified Boruchowitz, Means, and Gray that the new canteen provider 17 was fraudulently collecting sales taxes. Plaintiff filed a complaint through the jail’s formal 18 grievance process. Boruchowitz responded that these sales taxes were required. 19 On July 5, 2016, Boruchowitz told Plaintiff that the assessment of the sales taxes, although 20 not fraudulent, was mistakenly assessed and that the sales tax assessment had been reversed. 21 Plaintiff received $6 back but filed a grievance on July 29, 2016 for remaining funds mistakenly 22 assessed pursuant to the improper sales tax. 23 iv. Facts Relevant to Count VII 24 On either December 13 or December 23, 2015, Plaintiff was involved in an incident where 25 Plaintiff was eventually tasered by Defendant Means, handcuffed, and escorted to his cell. 26 On January 3, 2016, Means gave Plaintiff written notice of a 135-day disciplinary sentence 27 in relation to this incident. Plaintiff immediately appealed and Means denied the appeal the next 28 / / / 1 day. In providing the notice on January 3, 2016, Means failed to comply with NCDC policy that 2 requires written notice of charges within a 96-hour time frame. 3 Upon conducting a hearing on May 27, 2017, prison staff concluded that Means improperly 4 served the discipline and Plaintiff’s remaining time in disciplinary was voided. Plaintiff spent a 5 total of 144 days in disciplinary segregation (January 4, 2016 – May 27, 2016) without a hearing 6 before being released. 7 v. Facts Relevant to Count VIII 8 On either August 20 or August 22, 2016, Plaintiff’s psychiatric medications ran out. 9 On August 24, 2016, Plaintiff was involved in an incident in which Plaintiff was ultimately 10 forced to the ground by Bissell and two other deputies. Plaintiff had been off his medication for 11 at least two days at the time of this incident. 12 Plaintiff’s prescription was refilled on August 25, 2016. 13 vi. Facts Relevant to Count IX 14 On September 3, 2016, a raid took place in which contraband including medication was 15 found on two inmates, who upon questioning said that the medication was from Plaintiff. 16 On September 8, 2016, Plaintiff received notice of disciplinary action related to this 17 medication found on the other inmates. Plaintiff was sentenced to 30 days of disciplinary 18 segregation. Defendants failed to comply with NCDC policy that requires written notice of 19 charges within a 96-hour time frame. Plaintiff did not receive a hearing. 20 b. Disputed Facts 21 i. Facts Relevant to Count II 22 Plaintiff alleges that he informed NCDC personnel that he was taking psychiatric 23 medications at the time of his initial arrest, and that he told several people at NCDC that he required 24 psychiatric treatment. 25 Defendants allege that Plaintiff only submitted two medical request forms: one for pain in 26 December 2014, which was addressed at that time, and another for prescription verification on 27 January 12, 2015, which led (two weeks later) to a verification of his prescriptions with San 28 / / / 1 Joaquin County Behavioral Health: Berphenazine and Seroquel. These medications were 2 thereafter promptly provided. 3 ii. Facts Relevant to Count V 4 Plaintiff alleges that he is still owed mischarged sales tax in an amount somewhere between 5 $31 and $38. 6 Defendants allege that Plaintiff was provided a full refund and argue that, in any event, 7 because the canteen provider has advised Means that it had returned all monies that were due, any 8 further action would have to be a civil matter between Plaintiff and the canteen provider. 9 iii. Facts Relevant to Count VII 10 The Court finds no factual dispute as to Count VII. 11 iv. Facts Relevant to Count VIII 12 The parties have different characterizations of the circumstances and the force deployed by 13 Defendant Bissell during the incident on August 24, 2016. 14 According to Defendants, on August 24, 2016, Plaintiff declined to comply with a 15 lockdown order and complained about his medication to non-party Wesley Taylor, who told 16 Plaintiff that non-party Gregory Arms was handling his medication issue. Taylor called for 17 additional deputies to force Plaintiff to lockdown. Four deputies, including Bissel, arrived. 18 Plaintiff was sitting at a jail kiosk and repeatedly declined to comply with orders to lockdown. 19 Bissell then grabbed Plaintiff by the right arm. Plaintiff pulled away, shouted, and tried to grab 20 Bissell. Deputies forced Plaintiff to the ground. On his way to the ground, Plaintiff landed on 21 Bissell’s left elbow and scratched Bissell’s nose. Plaintiff was then restrained and escorted to his 22 cell. 23 According to Plaintiff, Plaintiff had been awake for four straight days due to the deprivation 24 of his medication and was sitting down talking to NDCD staff, asking to go outside, when he was 25 attacked by Bissell and two others from behind unprovoked. Plaintiff alleges that there exists 26 video evidence of this attack but that the evidence is being withheld. 27 The parties also dispute whether deliberate indifference motivated the three-to-five days 28 Plaintiff spent without his medication in August 2016. According to Defendants, Plaintiff’s 1 medical provider cancelled Plaintiff’s appointment scheduled for August 20, 2016, where Plaintiff 2 would have received a refill of his medication. According to Plaintiff, Boruchowitz, Gray, and 3 Wehrly denied Plaintiff his psychiatric medication in an intentional attempt to force him to detox 4 and to destabilize him. 5 v. Facts Relevant to Count IX 6 The Court finds no factual dispute as to Count IX. 7 8 III. PROCEDURAL BACKGROUND 9 Plaintiff filed the Complaint and application to proceed in forma pauperis on September 10 27, 2016. ECF No. 1. On October 17, 2016, Plaintiff was granted leave to amend. ECF No. 10. 11 Plaintiff filed the First Amended Complaint on October 19, 2016. ECF No. 11. 12 The Court screened the First Amended Complaint on December 18, 2017. ECF No. 35. 13 The Court dismissed certain claims but retained the claims listed above. The Court denied 14 Plaintiff’s motions for appointment of counsel. The Court gave Plaintiff leave to file a second 15 amended complaint to cure certain deficiencies, but Plaintiff did not do so. 16 Bissell, Gray, Means, and Wehrly filed an Answer on March 29, 2018. ECF No. 49. A 17 clerk’s default was entered against Boruchowitz on April 9, 2018 and then set aside on April 24, 18 2018. ECF Nos. 52, 57. Boruchowitz filed on Answer on April 26, 2018. ECF No. 59. 19 Bissell, Gray, Means, and Wehrly filed their instant Motion for Summary Judgment on 20 October 31, 2018. ECF No. 104. Boruchowitz joined the Motion for Summary Judgment on 21 November 2, 2018. ECF No. 112. Plaintiff responded on November 13, 2018. ECF No. 114. 22 Bissell, Gray, Means, and Wehrly replied on November 27, 2018. ECF No. 117. Defendant 23 Boruchowitz joined the reply on November 28, 2018. ECF No. 119. 24 Plaintiff filed his instant Motion for Default and Cross-Motion for Summary Judgment on 25 November 15, 2018. ECF No. 115. Bissell, Gray, Means, and Wehrly responded on November 26 28, 2018. ECF No. 118. Boruchowitz joined the response on November 28, 2018. ECF No. 120. 27 The Court held a hearing on the pending motions on July 18, 2019 and determined that a 28 written order would issue. ECF No. 129. The Court reconsidered its earlier order denying 1 Plaintiff’s motions for appointment of counsel and referred Plaintiff to the Court’s pro bono pilot 2 program. Id. 3 4 IV. LEGAL STANDARD 5 a. Summary Judgment 6 Summary judgment is appropriate when the pleadings, depositions, answers to 7 interrogatories, and admissions on file, together with the affidavits, show “that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 9 Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the 10 propriety of summary judgment, the court views all facts and draws all inferences in the light most 11 favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 12 2014). If the movant has carried its burden, the non-moving party “must do more than simply 13 show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as 14 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine 15 issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation and internal quotation marks 16 omitted) (alteration in original). 17 b. Qualified Immunity 18 “The doctrine of qualified immunity protects government officials from liability for civil 19 damages insofar as their conduct does not violate clearly established statutory or constitutional 20 rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 21 (2009). Qualified immunity is an immunity from suit rather than a defense to liability, and 22 “ensures that officers are on notice their conduct is unlawful before being subjected to 23 suit.” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014). 24 In deciding whether officers are entitled to qualified immunity, courts consider, taking the 25 facts in the light most favorable to the nonmoving party, (1) whether the facts show that the 26 officer’s conduct violated a constitutional right, and (2) if so, whether that right was clearly 27 established at the time. Id. Under the second prong, courts “consider whether a reasonable officer 28 would have had fair notice that the action was unlawful.” Id. at 1125 (internal quotation marks 1 omitted). “This requires two separate determinations: (1) whether the law governing the conduct 2 at issue was clearly established and (2) whether the facts as alleged could support a reasonable 3 belief that the conduct in question conformed to the established law.” Green v. City & Cty. of San 4 Francisco, 751 F.3d 1039, 1052 (9th Cir. 2014). While a case directly on point is not required in 5 order for a right to be clearly established, “existing precedent must have placed the statutory or 6 constitutional question beyond debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011). 7 Further, the right must be defined at “the appropriate level of generality ... [the court] must not 8 allow an overly generalized or excessively specific construction of the right to guide [its] 9 analysis.” Cunningham v. Gates, 229 F.3d 1271, 1288 (9th Cir. 2000); see also al–Kidd, 131 S. 10 Ct. at 2084. The plaintiff bears the burden of proving that the right was clearly established. Id. at 11 1125. In deciding a claim of qualified immunity where a genuine dispute of material fact exists, 12 the court accepts the version asserted by the non-moving party. See Bryan v. MacPherson, 630 13 F.3d 805, 823 (9th Cir. 2010). 14 c. Default Judgment 15 The granting of a default judgment is a two-step process directed by Federal Rule of Civil 16 Procedure 55. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The first step is an entry of 17 clerk’s default based on a showing, by affidavit or otherwise, that the party against whom the 18 judgment is sought “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The second 19 step is default judgment under Rule 55(b), a decision which lies within the discretion of the 20 Court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors which a court, in its 21 discretion, may consider in deciding whether to grant a default judgment include: (1) the 22 possibility of prejudice to the plaintiff, (2) the merits of the substantive claims, (3) the sufficiency 23 of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute of material fact, 24 (6) whether the default was due to excusable neglect, and (7) the Federal Rules’ strong policy in 25 favor of deciding cases on the merits. Eitel, 782 F.2d at 1471–72. 26 27 A. DISCUSSION 28 a. Defendants’ Motion for Summary Judgment 1 vi. Count II 2 Pretrial detainees may raise inadequate medical care claims under the Fourteenth 3 Amendment’s Due Process Clause. Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 4 2018). The Court evaluates these claims under an objective deliberate indifference standard. Id. 5 at 1125. The elements of a pretrial detainee’s Fourteenth Amendment inadequate medical care 6 claim are: “(i) the defendant made an intentional decision with respect to the conditions under 7 which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 8 suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that 9 risk, even though a reasonable official in the circumstances would have appreciated the high degree 10 of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not 11 taking such measures, the defendant caused the plaintiff’s injuries.” Id. The third element requires 12 the defendant’s conduct to be “objectively unreasonable,” a test that turns on the facts and 13 circumstances of each particular case. Id. A plaintiff must “prove more than negligence but less 14 than subjective intent—something akin to reckless disregard.” Id. 15 Pursuant to the qualified immunity standard, the Court evaluates (1) whether the facts show 16 that the officer’s conduct violated a constitutional right, and (2) if so, whether that right was clearly 17 established at the time. Here, the Court finds that the facts do not show that Defendants’ conduct 18 violated a constitutional right. 19 Defendants argue that Plaintiff cannot prove that each Defendant made an intentional 20 decision to deny Plaintiff psychiatric care, as Plaintiff has no evidence that Wehrly, Boruchowitz, 21 or Gray knew of his psychiatric needs. The Court agrees. Prison logs indicate that on November 22 17, 2014, Plaintiff’s criminal proceedings were suspended due to an order for a mental competency 23 exam at Lakes Crossing. ECF No. 104, Exhibit A at 11. But Plaintiff proffers no evidence that 24 Defendants knew of his psychiatric illness or his prescription for medication. The first evidence 25 of Plaintiff communicating his need for medication to prison staff is a kite dated January 12, 2015. 26 ECF No. 109, Exhibit B at 1032. Plaintiff does not dispute that Defendants then verified his 27 prescription within two weeks and that he received necessary medical attention in February. 28 Because Plaintiff has no evidence that any Defendants knew he needed care prior to the submission 1 of his January 2015 kite, he cannot show that any Defendant made an intentional decision to deny 2 Plaintiff psychiatric care from June 2014 onward. Plaintiff does not contest that within a few 3 weeks of the submission of his kite, prison staff arranged for the verification of his prescription 4 and began providing his psychiatric medication as prescribed. Therefore, the Court grants 5 summary judgment as to Count II for deliberate indifference in favor of Gray, Boruchowitz, and 6 Wehrly. 7 vii. Count V 8 While an authorized, intentional deprivation of property is actionable under the Due 9 Process Clause, neither a negligent nor intentional unauthorized deprivation of property by a prison 10 official is actionable “if a meaningful post-deprivation remedy for the loss is available.” Hudson 11 v. Palmer, 468 U.S. 517, 533 (1984). An authorized deprivation is one carried out pursuant to 12 established state procedures, regulations, or statutes. See Logan v. Zimmerman Brush Co., 455 13 U.S. 422, 435–36 (1982). 14 As above, the Court evaluates (1) whether the facts show that the officer’s conduct violated 15 a constitutional right, and (2) if so, whether that right was clearly established at the time. As to 16 this claim, the Court finds that no clearly established law places the constitutional question beyond 17 debate. 18 Defendants argue that they cannot be liable for the alleged deprivation of property because 19 the third-party vendor assessed the sales tax, not the named Defendants. The Court agrees that a 20 reasonable officer would not be on fair notice of any potential liability in this situation. While 21 Plaintiff can show that Plaintiff interacted with Boruchowitz, Wehrly, and Gray regarding 22 Plaintiff’s complaints as to the vendor’s withholding of taxes, Plaintiff cannot show that the 23 deprivation of property was committed by any of the Defendants. See ECF No. 107, Exhibit B at 24 677, 910. No clearly established law indicates that a prison official can be held liable for 25 knowledge of intentional deprivation of property by a third-party vendor. Moreover, the language 26 of 42 U.S.C. § 1983 itself states that a person is liable if he “subjects, or causes to be subjected” a 27 person to the deprivation of a constitutional right. Viewing the facts in the light most favorable to 28 Plaintiff, Plaintiff only can show that Defendants knew about the vendor’s practice of charging the 1 taxes and, for a period of time, erroneously believed the practice to be correct. Plaintiff cannot 2 show that Defendants either subjected him to a deprivation of his tax money or caused him to be 3 subjected to a deprivation of his tax money or that he did not have an adequate post-deprivation 4 remedy. The Court finds that the Plaintiff has not shown a constitutional violation of clearly 5 established law. Therefore, the Court grants summary judgment as to Count V for a due process 6 deprivation of property claim in favor of Gray, Boruchowitz, and Means. 7 viii. Count VII 8 The Fourteenth Amendment’s Due Process Clause prohibits jail and prison officials from 9 “punishing” a pretrial detainee without a due process hearing. Mitchell v. Dupnik, 75 F.3d 517, 10 524 (9th Cir. 1996). “[P]retrial detainees may be subjected to disciplinary segregation only with 11 a due process hearing to determine whether they have in fact violated any rule.” Id. 12 The Court finds (1) that the undisputed facts show that Defendants’ conduct violated 13 Plaintiff’s right to a due process hearing and (2) that the right to a due process hearing prior to 14 disciplinary segregation is clearly established by Mitchell, such that Defendants could not 15 reasonably have believed that denying Plaintiff a hearing could conform to established law. The 16 Court finds it undisputed that Plaintiff was held in disciplinary segregation for 144 days without a 17 hearing. 18 Defendants argue that, even though Means failed to comply with jail rules by submitting 19 his written notice of the charges within the 96-hour time frame, his January 3, 2016 notice of the 20 pending charges satisfied the constitutional requirement that a pretrial detainee be provide written 21 notice of the charges against him, along with an opportunity to address the charges. Ultimately, 22 Boruchowitz conducted a disciplinary hearing and Plaintiff’s remaining time in disciplinary was 23 voided. But Defendants do not contest that Plaintiff spent 144 days—almost five months—in 24 disciplinary segregation without a hearing. 25 It is clearly established that Plaintiff has a right to a due process hearing prior to the 26 imposition of disciplinary segregation. Defendants concede that Plaintiff did not receive one. The 27 Court consequently denies qualified immunity on this claim as Defendants placement of Plaintiff 28 / / / 1 in disciplinary segregation for 144 days violated clearly established law. The Court denies 2 summary judgment as to Count VII. 3 ix. Count VIII (Deliberate Indifference) 4 As above, pretrial detainees may show inadequate medical care under the Fourteenth 5 Amendment’s Due Process Clause by proving five elements, the first of which is that the defendant 6 made an intentional decision with respect to the conditions under which the plaintiff was confined. 7 Gordon, 888 F.3d at 1124–25. Defendants argue that they did not make an intentional decision 8 regarding Plaintiff’s medications; rather, Plaintiff’s medical provider, Open Arms, cancelled 9 Plaintiff’s August 20, 2016 appointment and it therefore took a few days to get Plaintiff’s 10 prescription refilled. 11 Pursuant to the qualified immunity standard, the Court evaluates (1) whether the facts show 12 that the officer’s conduct violated a constitutional right, and (2) if so, whether that right was clearly 13 established at the time. The Court finds that the facts do not show violation of a constitutional 14 right, as Plaintiff cannot demonstrate that any Defendant possessed the requisite intent to 15 withholding his medication. The record shows that on August 20, 2016, Plaintiff asked if he would 16 be seen at Open Arms that day and was concerned that he would run out of medication “very 17 shortly.” ECF No. 104, Exhibit B at 156. Plaintiff’s medication was refilled on August 25, 2016. 18 ECF No. 104, Exhibit B at 158. Plaintiff appears to have been out of medication for up to five 19 days. Plaintiff lacks evidence, however, that Defendants made an intentional decision to 20 discontinue his medication for that five-day period. Therefore, the Court grants summary 21 judgment as to Count VIII for deliberate indifference in favor of Boruchowitz, Gray, and Wehrly. 22 x. Count VIII (Excessive Force) 23 To succeed on a claim of use of excessive force, a pretrial detainee must prove that: (1) the 24 defendant’s use of force was used purposely or knowingly, and (2) the force purposely or 25 knowingly used against the pretrial detainee was objectively unreasonable. Kingsley v. 26 Hendrickson, 135 S. Ct. 2466, 2472–73 (2015). 27 Here, the Court finds that, accepting the version of facts asserted by Plaintiff, (1) the facts 28 show that Bissel’s conduct violated a constitutional right and (2) the right was clearly established. 1 Defendants argue that Bissell used force under objectively reasonable conditions given 2 Plaintiff’s history of threats and violence, Plaintiff’s failure to comply with the lock down order 3 from multiple officers, and the fact that Plaintiff became physical with the officers, causing Bissell 4 physical harm. But the Court finds that the alleged facts relied upon by Defendants are heavily 5 disputed by Plaintiff. Under Plaintiff’s version of the facts, Plaintiff was asking prison staff if he 6 could go outside from a seated position and was attacked from behind by Bissell and two others. 7 ECF No. 104 at 25–26. Plaintiff’s version of the facts demonstrates purposeful and objectively 8 unreasonable force. Both Plaintiff and Defendants present only testimonial evidence to 9 characterize the details of this concededly violent incident. 10 Because the facts are contested, the Court accepts the version of facts asserted by Plaintiff 11 to evaluate whether the constitutional right is clearly established. The Court finds that the law 12 prohibiting the type of attack described by Plaintiff is clearly established, given that Plaintiff was 13 allegedly sitting on the ground and presenting no physical threat. Young v. Cty. of Los Angeles, 14 655 F.3d 1156, 1163 (9th Cir. 2011) (finding “decisively” that an officer used excessive force 15 where the plaintiff was sitting on the curb with his back turned to the officer when the officer 16 began to pepper spray him, and holding that the “[t]he legal principles that dictate our conclusion 17 that the force involved was excessive were clearly established and indeed, long-standing, prior to 18 2007”). The Court finds that there are genuine issues of disputed fact as to the claim and also 19 qualified immunity. Therefore, the Court denies summary judgment as to Count VIII for excessive 20 force. 21 xi. Count IX 22 As above, prison officials may not impose punishment, including disciplinary segregation, 23 on a pretrial detainee without a due process hearing. Mitchell, 75 F.3d at 524. 24 On September 8, 2016, Plaintiff was sentenced to 30 days of disciplinary segregation for 25 charges related to the medications retrieved from other inmates on September 3, 2016. ECF No. 26 104, Exhibit B at 163; accord ECF No. 106, Exhibit B at 664. When Plaintiff complained, Gray 27 responded: “After discussing your case with Sgt. Boruchowitz we have determined that since you 28 were already on disciplinary lockdown you are not due the same due process and your latest 1 discipline for the medication stands.” ECF No. 106, Exhibit B at 652. Defendants concede that 2 Plaintiff was not afforded a hearing but argue that process was not required because Plaintiff was 3 already in segregation, with seven days remaining on his previously-imposed sentence—a fact that 4 is contested. As above, Plaintiff had a right to a due process hearing prior to the imposition of any 5 punishment and it is uncontested that he did not receive one. It is beyond dispute that the 6 additionally imposed days of segregation constitute punishment, and it is clearly established that 7 punishment of pretrial detainees is constitutionally prohibited absent a hearing. Therefore, the 8 Court denies qualified immunity and summary judgment as to Count IX. 9 b. Plaintiff’s Motion for Default and Cross Motion for Summary Judgment 10 Plaintiff seeks a default judgment against Boruchowitz. The Court does not find that a 11 default judgment against Boruchowitz is appropriate. Boruchowitz filed an Answer on April 26, 12 2018. ECF No. 59. He has since participated in this suit by filing various joinders and responses. 13 ECF Nos. 64, 69, 78, 86, 96, 101, 112, 119, 120. Boruchowitz has not “failed to plead or otherwise 14 defend.” Fed. R. Civ. P. 55(a). Therefore, default judgment is not merited. To the extent Plaintiff 15 also seeks summary judgment in his favor, Plaintiff makes no argument to that effect. The Court 16 therefore denies Plaintiff’s motion. 17 18 IV. CONCLUSION 19 IT IS ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 103) is 20 GRANTED as to Count II, Count V, and the deliberate indifference portion of Count VIII and 21 otherwise DENIED. Plaintiff’s claims for procedural due process (Count VII, against Defendants 22 Means, Boruchowitz, Gray, and Wehrly, and Count IX, against Boruchowitz and Wehrly) and 23 Plaintiff’s claim for excessive force (the remaining portion of Count VIII, against Bissell) will 24 proceed to trial. 25 IT IS FURTHER ORDERED that Plaintiff’s Motion for Default and Cross Motion for 26 Summary Judgment (ECF No. 115) is DENIED. 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that the Court reconsiders and grants Plaintiffs previous 2 | request for counsel. This case is referred to the pro bono project of this District for possible 3} assignment of counsel. 4 IT IS FURTHER ORDERED that a status conference is set for October 2, 2019 at 1:00 5} p.m. 6 IT IS FURTHER ORDERED that the Joint Pretrial Order in this case is due September 27,2019. 8 9 DATED: July 28, 2019. 10 < | S 1] RICHARD F. BOULWARE, II 2 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14-