Williams v. Ryals

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 TERRANCE E. WILLIAMS, Case No. 3:21-cv-00133-ART-CLB 5 Petitioner, ORDER 6 v. 7 RYALS, et. al., 8 Respondents. 9 10 Plaintiff Terrance Williams (“Williams”) is an inmate in the custody of the 11 Nevada department of Corrections (“NDOC”). The events giving rise to this action 12 took place while Plaintiff was housed at the Washoe County Detention Facility 13 (WCDF) as a pretrial detainee. Plaintiff is proceeding pro se with this action 14 pursuant to 42 U.S.C. § 1983. (Second Amended Complaint (SAC), ECF No. 7.) 15 The Court screened Plaintiff’s SAC and allowed him to proceed with an excessive 16 force claim against defendants Deputies Wuepper, Santos, and Reza. The claim 17 is based on allegations that Deputies Wuepper and Santos unnecessarily 18 deployed pepper spray against him, and he subsequently had an abnormal x-ray 19 revealing fluid in his lung. He further alleges that Deputy Reza filmed the incident 20 without intervening. (ECF No. 10.) 21 Before the Court are Judge Denney’s Report and Recommendations (R&R) 22 (ECF Nos. 99; 112; 113) recommending that Santos’, Wuepper’s, and Reza’s 23 motions for summary judgment (ECF Nos. 43; 71; 74) be denied. Only Santos 24 and Reza object to the R&Rs.1 25 Also pending before the Court are Williams’ objections (ECF Nos. 83; 92) to 26 Judge Denney’s order (ECF N0. 82) denying his motion to strike (ECF Nos. 77) 27 28 1 Initially Wuepper objected (ECF No. 114) but he withdrew his objection (ECF No. 123). 1 and Defendants’ motions in limine (ECF Nos. 30; 36) seeking to introduce 2 evidence of Williams’ prior convictions at trial. 3 The Court adopts Judge Denney’s R&Rs, overrules Williams’ objections to 4 Judge Denney’s order denying his motion to strike, and denies without prejudice 5 Defendants’ motions in limine. 6 I. Review of the Magistrate Judge’s Recommendations 7 This Court “may accept, reject, or modify, in whole or in part, the findings 8 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 9 a party timely objects to a magistrate judge’s report and recommendation, then 10 the Court is required to “make a de novo determination of those portions of the 11 [report and recommendation] to which objection is made.” Id. Where a party fails 12 to object, however, the Court is not required to conduct “any review at all . . . of 13 any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 14 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 15 2003) (“De novo review of the magistrate judges’ findings and recommendations 16 is required if, but only if, one or both parties file objections to the findings and 17 recommendations”) (emphasis in original); FED. R. CIV. P. 72, Advisory Committee 18 Notes (1983) (providing that the Court “need only satisfy itself that there is no 19 clear error on the face of the record in order to accept the recommendation”). 20 II. Facts 21 When Plaintiff was a pretrial detainee at WCDF, and alone locked in his 22 cell, deputies, including Defendant Wuepper, deployed pepper spray into his cell 23 during a cell extraction while Defendant Reza filmed the incident and Defendant 24 Santos stood by. 25 The following facts are taken from Judge Denney’s R&Rs. (ECF Nos. 99; 26 112; 113.) The incident occurred on February 2, 2022, (Santos Aff., ECF No. 43- 27 1), and started when Deputy Abina (not a defendant) had communications with 28 Plaintiff about a commissary order that had not yet arrived. Abina explained to 1 Plaintiff that the commissary order may be returned because Plaintiff had 2 recently moved from a different housing unit. According to Abina, Plaintiff began 3 to curse and threaten that he would “choke [Abina] out” and to “just ask Deputy 4 Gonzalez.” Abina says Plaintiff was referring to a prior battery on Deputy Gonzalez 5 in March of 2019. (Abina Aff., ECF No. 43-2.) 6 According to Santos, Plaintiff then refused to return his food tray and 7 challenged deputies to retrieve the food tray, saying “Fuck you. If you want it, 8 come and get it.” Santos attempted to talk with Plaintiff, but was unsuccessful, 9 and notified other deputies of the situation. (Santos Aff., ECF No. 43-1.) Deputy 10 Ashby (not a defendant) responded to the housing unit for a report of an inmate 11 who was refusing to return his food tray and was physically challenging deputies 12 to retrieve the tray. Ashby and another deputy approached the cell to attempt to 13 recover the food tray. Plaintiff refused. Ashby observed Plaintiff wrapping his 14 limbs in bedsheets, which Ashby believed indicated that Plaintiff was preparing 15 for a physical altercation. Ashby claims that he asked Plaintiff if he would hurt 16 any of the deputies that entered the cell, and Plaintiff replied, “yes.” As a result, 17 Ashby concluded Plaintiff was a danger to himself and to deputies, and a decision 18 was made to move Plaintiff to a new cell that allowed him to be more closely 19 observed by staff. 20 Ashby prepared the Detention Response Team (DRT) to assist in the 21 extraction to move Plaintiff to a new cell. Ashby states that he made the decision 22 to use chemical agents in the extraction due to Plaintiff’s threats toward staff and 23 his observations that Plaintiff was preparing for a physical altercation. In Ashby’s 24 experience, extractions can be dangerous when chemical agents are not used to 25 subdue a non-compliant inmate. 26 Ashby gave instructions to Plaintiff that he allow himself to be placed in 27 restraints, and that a failure to follow the instructions would result in force being 28 used, including chemical agents. Plaintiff refused to comply. Ashby spoke with 1 Sergeant Gamboa (not a defendant) to confirm Plaintiff should be removed from 2 his cell, and when he received confirmation, Ashby initiated the use of chemical 3 agents into Plaintiff’s cell. Ashby states the chemical agents were used to subdue 4 Plaintiff because he was a threat to himself and deputies if he was extracted in 5 his agitated state. Plaintiff attempted to block the door and window with his 6 mattress. (Ashby Aff., ECF No. 43-3; Gamboa Aff., ECF No. 43-4.) Defendant 7 Wuepper assisted in deploying the chemical agents. Two cannisters of chemical 8 agents were administered into Plaintiff’s cell through the food slot. (Wuepper Aff., 9 ECF No. 43-5.) 10 Santos and Reza did not actively deploy chemical agents but neither did 11 they intervene. Santos did not make the decision to activate the DRT team. He 12 did not take part in the decision to use chemical agents against Plaintiff. Santos 13 did not deploy the chemical agents or participate in Plaintiff’s extraction from his 14 cell. Santos was present during the use of chemical agents and extraction. 15 (Santos Aff., ECF No. 43-1.) Likewise, Reza, who was being trained at the time, 16 was asked to get a video camera, and go to that unit and film the events occurring 17 at Plaintiff’s cell. She asserts that she was standing on the stairs, 15-20 feet away 18 from Plaintiff’s cell and maintains that she could not have physically intervened 19 given the distance she was standing away Plaintiff’s cell. (Reza Aff., ECF No. 74- 20 12.) Reza appears be closer than that on the video. 21 Plaintiff asserts he was not an immediate threat to anyone. He returned 22 the plastic food tray, yet chemical agents were still used against him when he 23 was unarmed, defenseless and locked in a cell, and not a physical threat to 24 anyone. 25 The video of the incident submitted by Santos, (ECF No. 43-6), shows the 26 DRT team going to Plaintiff’s cell. Plaintiff can be seen in the window of the cell 27 and was told to give them the tray and “cuff up.” Plaintiff was told if he did not 28 follow the instructions, force would be used. Plaintiff complied and gave the tray 1 back. He was then told to back away from the food slot twice and was cautioned 2 that if he did not follow instructions, force would be used against him, including 3 chemical agents. Plaintiff was then told to lie down and face away from the door 4 and put his hands at his sides. Plaintiff stood in the window of the cell holding 5 what is later revealed to be the mattress from his cell against the door. Plaintiff 6 was asked if he would follow the instructions, and Plaintiff put the mattress back 7 up against the cell door and remained standing in the cell window. A cover was 8 placed over the window by a deputy. It was briefly taken off while a deputy looked 9 inside the cell. Chemical agents were then deployed into Plaintiff’s cell. Plaintiff 10 was instructed to lie down on the ground with his hands out to the sides, facing 11 the back wall. The DRT team then entered Plaintiff’s cell and Plaintiff was on the 12 ground. Plaintiff was restrained and removed from the cell. Plaintiff can be heard 13 coughing while he is being restrained. 14 III. Legal standards 15 A. Summary Judgment Standard 16 Summary judgment is appropriate if the movant shows “there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” FED. R. CIV. P. 56(a), (c). A fact is material if it “might affect the outcome 19 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 20 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable 21 jury could return a verdict for the nonmoving party.” Id. 22 The party seeking summary judgment bears the initial burden of informing 23 the Court of the basis for its motion and identifying those portions of the record 24 that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 25 Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party 26 to set forth specific facts demonstrating there is a genuine issue of material fact 27 for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 28 2000); Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To 1 defeat summary judgment, the nonmoving party must produce evidence of a 2 genuine dispute of material fact that could satisfy its burden at trial.”). The Court 3 views the evidence and reasonable inferences in the light most favorable to the 4 non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 5 (9th Cir. 2008). 6 B. Excessive Force Standard for a Pretrial Detainee 7 Williams maintains that his due process rights were violated when 8 Defendant Wuepper used pepper spray against him, Defendant Reza filmed the 9 incident, and Defendant Santos looked on without intervening. “[T]he Due 10 Process Clause protects a pretrial detainee from the use of excessive force that 11 amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395, n.10 (1989). In 12 determining whether the force used against a pretrial detainee is excessive, “a 13 pretrial detainee must show only that the force purposely or knowingly used 14 against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 15 389, 396-97 (2015). 16 “[O]bjective reasonableness turns on the ‘facts and circumstances of each 17 particular case.’” Id. at 397 (quoting Graham, 490 U.S. at 396). “A court must 18 make this determination from the perspective of a reasonable officer on the scene, 19 including what the officer knew at the time, not with the 20/20 vision of 20 hindsight.” Id. “A court must also account for the ‘legitimate interests that stem 21 from [the government’s] need to manage the facility in which the individual is 22 detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ 23 of jail officials ‘are needed to preserve internal order and discipline and to 24 maintain institutional security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 25 (1979)). 26 Among the considerations that may bear on the reasonableness or 27 unreasonableness of the force used are the relationship between the need for 28 force and the amount of force used; the extent of the plaintiff's injury; the officer’s 1 effort to temper or limit the amount of force; the severity of the security problem 2 at issue; the threat reasonably perceived by the officer; and whether the plaintiff 3 was actively resisting. Id. (citing Graham, 490 U.S. at 396). 4 “Officers have a duty to intercede when their fellow officers violate the 5 constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 6 1416, 1447 n. 25 (9th Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996). 7 Officers can be liable for failing to intercede if they had an opportunity to do so. 8 Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (officers did not have 9 a realistic opportunity to intervene because they were not present at the time of 10 the shooting). Liability for failure to intervene may extend to those who did not 11 take affirmative action to contribute to the excessive force. See Robins v. 12 Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); Lolli v. County of Orange, 351 F.3d 13 410, 418 (9th Cir. 2003) (sergeant who observed deputies struggling with the 14 plaintiff but failed to intervene was not entitled to summary judgment); M.H. v. 15 County of Alameda, 62 F.Supp.3d 1049, 1093 (N.D. Cal. Apr. 11, 2014) (deputies 16 who were present during the altercation and participated in the effort to control 17 the plaintiff were not entitled to summary judgment). 18 Summary judgment in excessive force cases is “granted sparingly” because 19 these cases nearly “always require[] a jury to sift through disputed factual 20 contentions, and to draw inferences[.]” Lolli, 351 F.3d at 415-16 (citation and 21 quotation marks omitted). “To defeat summary judgment, [the plaintiff] must 22 show that a reasonable jury could have found that the officer’s use of force was 23 excessive.” Id. (citation omitted). 24 IV. Analysis 25 A. Defendant Santos 26 Judge Denney correctly recommended the denial of summary judgment on 27 the basis that there are disputed factual issues concerning whether the officers 28 used excessive force and whether Santos should have intervened. A reasonable 1 jury could find it was objectively unreasonable to deploy two cannisters of 2 chemical agents (pepper spray) into Plaintiff’s cell after he had returned the food 3 tray and was locked in a cell by himself. There is also a dispute of fact concerning 4 the extent of his injuries. Whether Santos should have intervened depends on the 5 jury’s resolution of these factual issues. 6 Santos objects to the R&R on grounds that he was sued for 7 unconstitutional use of excessive force, not failure to intervene. Santos points to 8 the Screening Order (ECF No. 10), which allowed Plaintiff’s claim against Santos 9 to survive, and described it as an excessive force claim. (ECF No. 10). The 10 surviving claim itself is worded more broadly than characterized in the Screening 11 Order and alleges that Santos assisted in the SWAT weaponry deployment. (ECF 12 No. 7.) While the Screening Order may have been imprecise, the excessive force 13 claim against Santos is sufficiently broad to encompass the theory of failure to 14 intervene. It also appears Santos suffers no legal prejudice by any perceived lack 15 of notice because his motion for summary judgment (addressing deliberate 16 indifference) was not responsive to either theory. (ECF No. 43.) 17 Now that Plaintiff’s failure to intervene theory is clear, the Court will deny 18 summary judgment and allow Santos 30 days from the date of this Order to file 19 an appropriate substantive motion. 20 B. Defendant Wuepper 21 Judge Denney correctly recommended the denial of summary judgment to 22 Defendant Wuepper because there are disputed factual issues concerning 23 whether he used excessive force. Defendant Wuepper withdrew his objection to 24 the R&R, (ECF No. 123). 25 C. Defendant Reza 26 The Court agrees with Judge Denney that there is a genuine dispute 27 regarding whether there was an underlying constitutional violation, whether Reza 28 knew there was a constitutional violation, and if so, whether Reza had a 1 reasonable opportunity to intervene. Reza argues that she did not have a 2 reasonable opportunity to intervene in the alleged constitutional violation, she 3 was not part of the decision to move Plaintiff from his cell, was training under 4 Wuepper when that decision was made, and was required by law to film the 5 incident. (ECF No. 115.) These arguments were already considered and rejected 6 by Judge Denney. The Court adopts his analysis and finds that there remains a 7 genuine dispute regarding whether there was an underlying constitutional 8 violation, whether Reza knew there was a constitutional violation, and if so, 9 whether Reza had a reasonable opportunity to intervene. 10 V. Motions in Limine 11 The Court denies without prejudice Defendants’ motions in limine seeking 12 to admit Williams’ prior convictions. Defendants fail to address each conviction 13 individually and support their motions with sufficient authority. 14 Defendants move the Court to admit Williams’ current felony conviction for 15 Possession of Forged Instruments or Bills under Rule 609(a)(1) of the Federal 16 Rules of Evidence. (ECF No. 30.) Certain felonies are admissible to impeach, 17 subject to Rule 403. FED. R. EVID. 609(A)(1). Rule 403 allows the court to exclude 18 relevant evidence if its probative value is substantially outweighed by a danger of 19 one or more of the following: unfair prejudice, confusing the issues, misleading 20 the jury, undue delay, wasting time, or needlessly presenting cumulative 21 evidence. FED. R. EVID. 403. Defendants do not make any arguments regarding 22 this conviction’s probative value. As proponents of this evidence, Defendants fail 23 to carry their burden. 24 Defendants also seek to admit Williams’ 2005 robbery conviction under 25 Rule 609(b) to confirm his potential for violence. (ECF No. 30.) A conviction more 26 than ten years old is not admissible as impeachment evidence “unless the court 27 determines, in the interests of justice, that the probative value of the conviction 28 supported by specific facts and circumstances substantially outweighs its 1 prejudicial effect.” Fed. R. Evid. 609(b). Given this standard, stale convictions will 2 be admitted “very rarely and only in exceptional circumstances . . . .” Simpson v. 3 Thomas, 528 F.3d 685, 690 (9th Cir. 2008). Here Defendants fail to identify 4 specific facts and circumstances that would substantially outweigh the 5 prejudicial effect of a 17-year-old conviction for robbery, which has no apparent 6 probative value on whether the officers used excessive force in the incident at 7 issue. On this record, the Court finds that evidence of Williams’ robbery 8 conviction is not admissible through Rule 609(b)(1). 9 Defendants move to admit six misdemeanor convictions for petit larceny, 10 obstructing and resisting an officer, and contempt of court. (ECF No. 30.) Rule 11 609(a)(2) provides for the admission of non-felony convictions if “the court can 12 readily determine that establishing the elements of the crime required proving-- 13 or the witness's admitting--a dishonest act or false statement.” FED. R. EVID. 14 609(a)(2). None of these convictions appear to fall within the purview of Rule 15 609(a)(2). “Generally, crimes of violence, theft crimes, and crimes of stealth do 16 not involve dishonesty or false statement within the meaning of Rule 609(a)(2).” 17 United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982); United States v. 18 Ortega, 561 F.2d 803, 807 (9th Cir. 1977). Misdemeanor convictions for resisting 19 arrest are also generally inadmissible under Rule 609(a)(2). See Daniels v. Loizzo, 20 986 F. Supp. 245, 249 (S.D.N.Y. 1997). Three of the six convictions are older than 21 ten years, making them admissible only if they both satisfy Rule 609(a)(2) (non- 22 felony convictions involving dishonesty) and Rule 609(b)(1) (convictions more 23 than ten years old). Because defendants have not met that burden, the motion is 24 denied without prejudice. 25 The Court also denies Defendants’ motion to admit Plaintiff’s three battery 26 convictions (ECF No. 36) because Defendants’ fail to argue separate theories of 27 admissibility with respect to each conviction. Defendants seek to admit three 28 prior battery convictions to show that Williams was a threat, to impeach Williams 1 and to prove that Williams had an intent and plan to batter Defendants. If 2 Defendants elect to renew their motion they should identify, as to each conviction, 3 a permissible non-propensity purpose and articulate the relationship between the 4 conviction and a specific material issue in the case. The Court is unable to grant 5 Defendants’ motion on this record and based on the arguments of counsel. 6 VI. Objections 7 The Court overrules Plaintiff’s objections (ECF No. 83; 92) to Judge 8 Denney’s Order (ECF No. 82) denying his motion to strike (ECF No. 77). In 9 reviewing a magistrate judge’s non-dispositive pretrial order, the magistrate 10 judge’s factual determinations are reviewed for clear error. See 28 U.S.C. § 11 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may 12 reconsider any pretrial matter referred to a magistrate judge in a civil or criminal 13 case pursuant to LR IB 1-3, where it has been shown that the magistrate judge’s 14 ruling is clearly erroneous or contrary to law.”). A magistrate judge’s decision is 15 clearly erroneous or contrary to law “when he makes an error of law, when he 16 rests [a] decision on clearly erroneous findings of fact, or when [the Court is] left 17 with a definite and firm conviction that he committed a clear error of judgment.” 18 United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quotation omitted). 19 Plaintiff moved to strike Reza’s second motion for summary judgment (ECF 20 No. 74) because Reza’s first motion for summary judgment was denied and moved 21 to strike Exhibit 1 to Reza’s second motion for summary judgment (ECF No. 74- 22 1) because those documents are irrelevant. Judge Denney found that there was 23 an insufficient basis to strike either the motion or the exhibit. Reza’s second 24 motion for summary judgment was proper because it addressed the merits of 25 Plaintiff’s claim against her. Judge Denney also found that there was no basis to 26 strike Exhibit 1 to the motion, Plaintiff’s initiating documents, and Plaintiff could 27 instead dispute the relevance of the document in his response to Reza’s motion. 28 (ECF No. 82.) 1 The Court cannot conclude under any standard of review that Judge 2 || Denney’s Order was factually or legally deficient. The Court thus overrules 3 || Plaintiffs objections. 4 IT IS THEREFORE ORDERED that Defendants’ motions in limine (ECF 5 || Nos. 30; 36) are DENIED WITHOUT PREJUDICE; 6 IT IS FURTHER ORDERED that Defendants’ motions for summary 7 || judgment (ECF Nos. 43; 71; 74) are DENIED; 8 IT IS FURTHER ORDERED that the Court will allow Defendant Santos 30 9 || days from the date of this Order to file an appropriate substantive motion if it has 10 || aclear basis for asserting a lack of liability on a failure to intervene theory; 11 IT IS FURTHER ORDERED that Plaintiffs objections (ECF Nos. 83; 92) are 12 || OVERRULED. 13 IT IS FURTHER ORDERED that the R&Rs (ECF Nos. 99; 112; 113) are 14 || ADOPTED IN FULL. 15 DATED THIS 20t* day of December 2022. 16 17 Aras jad Td 18 ANNER.TRAUM 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28