Robert C. Gamez, Plaintiff,
Charles Ryan, et al., Defendants.
ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff Robert C. Gamez, an inmate confined in the Arizona State Prison Complex (ASPC) Browning Unit, in Florence, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging a single claim of excessive force on May 7, 2011, in violation of the Eighth Amendment. The remaining Defendants-Arizona Department of Corrections (ADC) Correctional Officers Shilo Norris and Wesley Valentine-have filed a Motion for Summary Judgment, which Plaintiff opposes. (Docs. 88, 103.)
The Court will grant the motion and terminate the action.
I. Legal Standards
A. Summary Judgment
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., Ltd. v. Zenith RadioCorp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits or declarations, if any. See Fed.R.Civ.P. 56(c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But, if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 248-49. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment").
B. Excessive Force-Eighth Amendment
When a prison official is accused of using excessive force in violation of the Eighth Amendment, liability turns on whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-32 (1986)); see also Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). A showing of deliberate indifference is not enough. Whitley, 475 U.S. at 320. In determining whether the use of force was wanton and unnecessary, the Court must consider the following factors: (1) the extent of injury suffered by an inmate; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) the threat reasonably perceived by the responsible official; and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7.
II. Motion for Summary Judgment
A. Parties' Contentions
In support of their motion, Defendants submit their Statement of Facts (Doc. 88 (DSOF)); Plaintiff's Adult Inmate Management Systems Report (AIMS) ( id., Ex. A), their declarations (Exs. D, Valentine Decl., Ex. E, Norris Decl.) and other exhibits. In opposition, Plaintiff submits his Memorandum (Doc. 103), his Statement of Facts (Doc. 103-1 (PSOF)), and many exhibits, including grievance documents, Department Orders, documents related to disciplinary charges, and newspaper articles regarding prison conditions.
The record shows the following disputed and undisputed facts:
As preliminary matters, Plaintiff alleges that when he was admitted to ADC, mental health staff and security personnel knew that Plaintiff suffered from traumatic brain injury and frontal lobe dysfunction, which is associated with poor impulse control, aggression, and difficulty with self-reflection and empathy. (PSOF ¶ 4, Ex. A.) He asserts that ADC security has classified him with a serious mental health needs score of 3R, which requires a routine level of psychiatric care. ( Id. Ex. B.) Defendants assert that Plaintiff is serving multiple sentences at ADC for 33 separate felony convictions, including 15 aggravated assaults, three armed robberies, three kidnappings and two attempted murders. (DSOF ¶ 1.) Since his initial incarceration in 2002, he has been found guilty of 33 separate disciplinary infractions, including two assaults on staff, multiple acts of disobedience, one aggravated assault, taking an officer hostage with a weapon and various other aggressive behaviors. (DSOF ¶ 2.) Plaintiff disputes this and claims that this is improper argument. (PSOF ¶ 1.)
As to the incident in question, Plaintiff alleges that on May 7, Valentine was the floor officer responsible for matters such as escorting inmates to and from the shower. (PSOF ¶ 5.) Plaintiff was placed in wrist restraints with his hands behind his back and Valentine escorted Plaintiff and another inmate to a separate tier for showers. (PSOF ¶ 6.) Plaintiff asked permission from Valentine to run upstairs to grab some Ibuprofen (IBU) from inmate Dongon. ( Id. ¶ 7.) Plaintiff alleges that Valentine responded "yes, when you come back up" meaning that when Plaintiff was done showering, he could run upstairs to Dongon's cell. ( Id. )
When Plaintiff finished the shower, he complied with the wrist restraints, and, according to Plaintiff, the other inmate observed Valentine grant Plaintiff permission to go upstairs saying "yes, make it quick." ( Id. ¶ 8, see Doc. 24.)
Defendants assert that as Valentine was escorting Plaintiff to his cell in the Henry run of ASPC Florence Central Unit, Plaintiff broke away and ran to Ida run. (DSOF ¶ 4.) Plaintiff disputes this, stating that he was being escorted from Fox-George run and had been given permission to grab IBU. (PSOF ¶ 55.) Defendants assert that Valentine directed Plaintiff to stop, Plaintiff did not stop, Plaintiff told Valentine "I don't give a f***, it makes no difference - I'm here for life, " and he, instead, ran upstairs to Ida run. (DSOF ¶¶ 5-6). Plaintiff responds that he disputes the allegations in these paragraphs "insofar, that see: § 55." (PSOF ¶¶ 56, 57.)
Defendants further assert that Norris, who was nearby, followed Plaintiff and had a brief conversation with Plaintiff and told him to return to his cell. (DSOF ¶¶ 7, 8.) Plaintiff claims that Norris was already on Ida run collecting trays and that Plaintiff stopped at Dongon's cell. (PSOF ¶ 58.) Plaintiff disputes that Norris had a conversation with him and asserts that when Norris initiated contact, Plaintiff was standing handcuffed facing Dongon's cell speaking to Dongon when he was grabbed on his shoulder by Norris who interlocked his arm between Plaintiff's handcuffs and then viciously swung Plaintiff around. (PSOF ¶ 59.) Defendants assert that as Norris initiated a hands-on escort of Plaintiff, Plaintiff attempted to break free of the escort and thrust his head backwards, striking Norris on the right cheek. (DSOF ¶ 10.) Plaintiff asserts that he could not possibly have head butted Norris because he is not tall enough and he further argues that ADC Director's Order (DO) 804, Use of Force, prohibited Norris from using force and that Plaintiff was attacked and assaulted. (PSOF ¶¶ 60, 61.) Defendants assert that Norris immediately deemed it necessary to place Plaintiff on the ground to gain control and initiated a takedown. (DSOF ¶ 11.) Plaintiff claims that Norris initiated the use of force when he grabbed Plaintiff. (PSOF ¶ 62.)
Defendants allege that Valentine activated the Incident Command System (ICS) and called for additional staff and a supervisor. (DSOF ¶ 12.) Plaintiff disputes this and asserts that Valentine offers no evidence that it was he who activated the ICS. (PSOF ¶ 63.) Defendants assert that Norris was unable to render Plaintiff completely prone, as he struggled to stand and continued to strike backwards with his head. (DSOF ¶13.) Plaintiff disputes this saying that his wrist had been restrained behind his back and Dongon witnessed Norris go out of his way to initiate the assault by grabbing Plaintiff's shoulder and slamming him to the ground. (PSOF ¶ 64.) Valentine also jumped on Plaintiff causing his face and head to hit the ground. ( Id. ) Defendants assert that Valentine assisted Norris in gaining control of Plaintiff by physically restraining his legs until additional staff arrived. (DSOF ¶ 14). Plaintiff claims that he immediately cried out in pain as Norris sat on his back and told him to shut the hell up; Norris was making "diabolical sounds" and yanking and twisting Plaintiff's fingers trying to push the handcuffs over his head. (PSOF ¶ 65.) Valentine twisted Plaintiff's ankles and stepped and bounced on his legs while Norris jumped on, punched and kicked Plaintiff. ( Id. ) Defendants assert that although Plaintiff's body fell to the ground in the takedown, his head did not strike the ground. (DSOF ¶ 15.) Defendants assert that Valentine held Plaintiff's legs while Norris held his arms and both told Plaintiff to stay down. (DSOF ¶¶ 16-17.) As noted above, Plaintiff disputes these allegations. (PSOF ¶¶ 66-68.) Defendants assert that Plaintiff complied and remained facedown until Sergeant Moore and COIIs Nguyen and St. George arrived to assist and relieve Valentine and Norris. (DSOF ¶¶ 18-20.) Plaintiff disputes this claiming he thought Defendants were going to kill him, he was semi-conscious, and he could hear the entire pod banging on their cell doors. (PSOF ¶ 69.) Plaintiff claims that the beating did not stop until additional staff arrived and he could hear Moore arguing with "outraged" inmates. ( Id. ¶ 70.) Plaintiff contends that leg restraints were not used although they claim Plaintiff was kicking. ( Id. ¶¶ 70, 72.)
Because Plaintiff sustained a superficial abrasion on his back, Sgt. Moore directed Nguyen and St. George to escort Plaintiff to the health unit for evaluation. (DSOF ¶¶ 21-22). Plaintiff was examined and determined to have no serious injuries. (DSOF ¶ 23). Plaintiff asserts that he had swelling and bruising on the left side of his face, the right side of his jaw, his lip, hands, ankles, and lower back and that he suffered confusion, dizziness, and difficulty breathing. ...