Berra v. Thomas M Hill

1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LEROY K. BERRA, NO: 2:17-CV-0318-TOR 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 SERGEANT THOMAS HILL, et al., 11 Defendants. 12 13 BEFORE THE COURT is Defendants Thomas Hill, Alfred Torres, Adam 14 Anderson, and Robert Brittos’ Motion for Summary Judgment (ECF No. 58). The 15 matter was submitted without a request for oral argument. Plaintiff has not filed a 16 Response as of the date of the entry of this Order. The Court has reviewed the 17 record and files therein, and is fully informed. As discussed below, the Motion is 18 granted. 19 STANDARD OF REVIEW 20 A movant is entitled to summary judgment if “there is no genuine dispute as 1 to any material fact and the movant is entitled to judgment as a matter of law.” 2 Fed. R. Civ. P. 56(a). A fact is “material” if it might affect the outcome of the suit 3 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 4 (1986). An issue is “genuine” where the evidence is such that a reasonable jury 5 could find in favor of the non-moving party. Id. The moving party bears the 6 “burden of establishing the nonexistence of a ‘genuine issue.’” Celotex Corp. v. 7 Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an 8 initial burden of production, which shifts to the nonmoving party if satisfied by the 9 moving party; and an ultimate burden of persuasion, which always remains on the 10 moving party.” Id. 11 The nonmoving party may not defeat a properly supported motion with mere 12 allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. Only 13 admissible evidence may be considered. Orr v. Bank of America, NT & SA, 285 14 F.3d 764 (9th Cir. 2002). Per Rule 56(c), the parties must support assertions by: 15 “citing to particular parts of the record” or “showing that the materials cited do not 16 establish the absence or presence of a genuine dispute, or than an adverse party 17 cannot produce admissible evidence to support the fact.” (emphasis added). The 18 “evidence of the non-movant is to be believed, and all justifiable inferences are to 19 be drawn in [the non-movant’s] favor.” Id. at 255. However, the “mere existence 20 of a scintilla of evidence” will not defeat summary judgment. Id. at 252. 1 Plaintiff is proceeding pro se, but is not currently incarcerated. In any event, 2 a Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) notice was provided to 3 Defendant on July 31, 2019. ECF No. 68. 4 BACKGROUND 5 The Court screened Plaintiff LeRoy Berra’s Second Amended Complaint 6 and determined that he stated a plausible claim against the named Defendants 7 based on, inter alia, allegations that Defendants used “excessive force in escorting 8 Plaintiff . . . on February 19, 2016, resulting in Plaintiff’s dislocated shoulder.” 9 ECF No. 47 at 7. Plaintiff otherwise alleged Sargent Hill (1) retaliated against 10 Plaintiff (for filing a grievance against Hill) by transferring him out of the facility 11 “expediently as to avoid completion of the grievance process[,]” ECF No. 42 at 15, 12 ¶ 32, and (2) violated Plaintiff’s due process rights by forcing Plaintiff to “endure 13 an a-typical disciplinary sanction” of six days solitary confinement while denying 14 Plaintiff “his right to call a witness and his right to attend and defend himself” 15 against the alleged rule violation, ECF No. 42 at 14, ¶¶ 28-29 (capitalization 16 altered). 17 Defendants submitted a Motion for Summary Judgment (ECF No. 58) on 18 July 30, 2019. On September 16, 2019, Plaintiff requested an extension of time to 19 file a Response. ECF No. 69. The Court granted the motion and set the deadline 20 to file a Response to November 15, 2019. ECF No. 70. As of the date of the entry 1 of this Order, Plaintiff has not filed a Response, nor has he requested additional 2 time to respond. Defendants’ Motion for Summary Judgment (ECF No. 58) is now 3 before the Court. 4 GOVERNING LAW 5 42 U.S.C. § 1983 provides: “Every person who, under color of any statute, 6 ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any 7 citizen of the United States . . . to the deprivation of any rights, privileges, or 8 immunities secured by the Constitution and laws, shall be liable to the party 9 injured[.]” “A person ‘subjects’ another to the deprivation of a constitutional right, 10 within the meaning of section 1983, if he does an affirmative act, participates in 11 another’s affirmative acts, or omits to perform an act which he is legally required 12 to do that causes the deprivation of which complaint is made”. Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978). A person “causes” a constitutional deprivation 14 “by setting in motion a series of acts by others which the actor knows or 15 reasonably should know would cause others to inflict the constitutional injury.” Id. 16 at 743–44. 17 Excessive force claims related to efforts to subdue convicted prisoners are 18 analyzed under the Eighth Amendment’s ban on cruel and unusual punishment. 19 See Graham v. Connor, 490 U.S. 386, 393–94 (U.S.,1989) (citing Whitley v. 20 Albers, 475 U.S. 312, 318–326 (1986) (claim of excessive force to subdue 1 convicted prisoner analyzed under an Eighth Amendment standard)). The 2 “unnecessary and wanton infliction of pain” constitutes cruel and unusual 3 punishment forbidden by the Eighth Amendment. Whitley, 476 U.S. at 319 4 (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)). “To be cruel and unusual 5 punishment, conduct that does not purport to be punishment at all must involve 6 more than ordinary lack of due care for the prisoner’s interests or safety.” Id. 7 “A viable § 1983 claim of retaliation for engaging in activity protected by 8 the First Amendment in the prison context involves the following elements: (1) An 9 assertion that a state actor took some adverse action against an inmate (2) because 10 of (3) that prisoner’s protected conduct, and that such action (4) chilled the 11 inmate’s exercise of his First Amendment rights, and (5) the action did not 12 reasonably advance a legitimate correctional goal.” Jones v. Williams, 791 F.3d 13 1023, 1035 (9th Cir. 2015) (citing Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th 14 Cir. 2005)). 15 Finally, “[p]risoners are entitled to certain due process protections when 16 subject to disciplinary sanctions.” Brown v. Oregon Dept. of Corrections, 751 17 F.3d 983, 987 (9th Cir. 2014) (citing Wolff v. McDonnell, 418 U.S. 539, 564–71 18 (1974)). However, “these procedural protections adhere only where the 19 deprivation implicates a protected liberty interest—that is, where the conditions of 20 confinement impose an ‘atypical and significant hardship on the inmate in relation 1 to the ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 2 472, 484 (1995)). “If a protected liberty interest is at stake, then the court must 3 determine whether the procedures used to deprive the prisoner of that liberty 4 violate due process.” Id. (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 5 2003)). 6 DISCUSSION 7 Defendants move for summary judgment contending, among other things: 8 (1) correctional officer Anderson was not present during the alleged use of force, 9 ECF No. 58 at 3; (2) the complained of excessive force was no more than “routine 10 and unremarkable” cuffing and escorting without incident or appearance of 11 discomfort, ECF No. 58 at 4-9; (3) Hill and Torres were not aware that Plaintiff 12 had any medical alerts or housing limitations, ECF No. 58 at 5; (4) an x-ray of 13 Plaintiff’s shoulder found “no evidence of an acute fracture and [] no evidence of 14 dislocation[,]” ECF No. 58 at 6; (5) there is no evidence defendants acted 15 maliciously and sadistically to cause harm or were otherwise deliberately 16 indifferent to Plaintiff’s medical needs, ECF No. 58 at 9, (6) Sargent Hill does not 17 have authority to control the timing of the transfers, ECF No. 58 at 10; and (7) the 18 complained-of sanction of six days of solitary confinement was not imposed, ECF 19 No. 58 at 11-12. 20 l Defendants support these contentions with medical records and declarations 2|| from the named Defendants. ECF Nos. 60-67. Plaintiff has not provided any evidence to counter these contentions. As a result, Defendants have demonstrated 4|| they are entitled to summary judgment as a matter of law, as there is no evidence 5|| of excessive force, no evidence Hill retaliated (or could have retaliated) against Plaintiff, and the complained-of sanction was never imposed. 7|| ACCORDINGLY, IT IS HEREBY ORDERED: 8 Defendants Thomas Hill, Alfred Torres, Adam Anderson, and Robert Brittos’ Motion for Summary Judgment (ECF No. 58) is GRANTED. 10 The District Court Executive is directed to enter this Order, furnish copies to the parties, enter judgment for the Defendants, and close the file. 12 DATED December 17, 2019. 13 □□ A Kes gp TOW, 0. ee 14 on Ue THOMAS O. RICE Chief United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY