United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Robert Michael Rodeski, who was previously confined in
CoreCivic's La Palma Correctional Center (LPCC) in Eloy,
Arizona, brought this civil rights case pursuant to 42 U.S.C.
§ 1983. (Doc. 7.) Before the Court are
Defendants' Motion for Summary Judgment (Doc. 44) and
Defendants' Motion for Summary Disposition of their
Motion for Summary Judgment (Doc. 47). Although the Court
provided notice to Plaintiff pursuant to Rand v.
Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc),
regarding the requirements of a response (Doc. 46), Plaintiff
did not respond to either motion. The Court will deny the
Motion for Summary Disposition, grant the Motion for Summary
Judgment, and terminate this action.
two-Count First Amended Complaint, Plaintiff alleged that he
was subjected to excessive force and denied constitutionally
adequate medical care. (Doc. 7.) On screening under 28 U.S.C.
§ 1915A(a), the Court determined that Plaintiff stated
an Eighth Amendment medical care claim and directed Captain
Bobertz, Sergeant Slaughter, and Correctional Officer (CO)
Messer to answer. (Doc. 9, 10.) The Court dismissed the
remaining claims and Defendants. (Id.)
Motion for Summary Disposition
their Motion for Summary Disposition, Defendants ask the
Court to summarily grant their pending Motion for Summary
Judgment because Plaintiff failed to file a response. (Doc.
47.) Defendants rely in part on Local Rule of Civil Procedure
7.2(i), which provides that the Court may deem a party's
failure to respond to a motion as consent to the granting of
the motion. (Id.) In Heinemann v.
Satterberg, the Ninth Circuit clarified that a local
rule permitting a district court to treat the lack of a
response as consent to granting a motion does not apply to
summary judgment motions. 731 F.3d 914, 917 (9th Cir. 2013).
If a summary judgment motion is unopposed, Rule 56
“authorizes the court to consider a fact as undisputed,
” but does not permit the court to grant summary
judgment by default. Id. Indeed, under the summary
judgment standard, if the moving party fails to meet its
initial burden of production, the opposing party need not
produce anything. Nissan Fire & Marine Ins. Co.,
Ltd. v. Fritz Co., Inc., 210 F.3d 1099,
1102-03 (9th Cir. 2000). The Court must therefore address
Defendants' Motion for Summary Judgment on the merits,
and will deny Defendants' Motion for Summary Disposition.
Summary Judgment Standard
must 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). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying portions of the record, together with
affidavits, if any, that it believes demonstrate the absence
of a genuine issue of material fact. Celotex, 477
U.S. at 323.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire,
210 F.3d at 1102-03. But if the movant meets its initial
responsibility, the burden shifts to the nonmovant to
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, and
that the dispute is genuine, i.e., the evidence is such that
a reasonable jury could return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 250 (1986); see Triton Energy Corp. v. Square
D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The
nonmovant need not establish a material issue of fact
conclusively in its favor, First Nat'l Bank of Ariz.
v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968);
however, it must “come forward with specific facts
showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed. R. Civ. P. 56(c)(1).
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. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court is
required to consider only the cited materials, but it may
consider any other materials in the record. Fed.R.Civ.P.
31, 2015, Defendant Bobertz was the Shift Captain for the
third shift; Defendant Slaughter was a third-shift sergeant
assigned to the TEWA Unit; and Defendant Messer was a
third-shift CO assigned to the TEWA Unit. (Doc. 45
(Defs.' Statement of Facts) ¶¶ 2-4.) That day,
the LPCC Special Operations Response Team
(“SORT”) conducted an operation in the TEWA unit
in order to search specific cells, including Plaintiff's,
for drugs or contraband. (Id. ¶¶ 6, 8-9.)
During a SORT operation, SORT “typically has authority
over the area and inmates within that area in order to
maintain consistency and control during the operation,
” and non-SORT employees “are to defer to the
SORT Commander and SORT members during an operation.”
(Id. ¶ 7.)
the July 31, 2015 SORT operation, SORT entered each cell and
each inmate was cuffed behind his back using “flex
cuffs, ” which are plastic wrist restraints that
resemble zip ties. (Id. ¶ 9.) Each inmate was
then taken to a hallway where they passed through a metal
detector and, once cleared, brought into a multi-purpose room
where they were seated on a chair backwards with the
inmate's chest facing the back of the chair.
(Id. ¶¶ 10-11.) Once all inmates were in
the multi-purpose room, SORT began its operation searching
the cells, and Defendant Messer monitored the inmates in the
multi-purpose room. (Id. ¶¶ 11-12.)
notified Bobertz and Slaughter that several inmates,
including Plaintiff, were complaining that their cuffs were
too tight and hurting their hands, but Messer, Bobertz, and
Slaughter were non-SORT employees and “did not have
authority to remove, loosen, tighten or readjust
[Plaintiff's] flex cuffs at that time.”
(Id. ¶¶ 12-13.) Bobertz informed the
Assistant SORT Commander that Plaintiff was complaining that
his cuffs were too tight, and members of SORT took Plaintiff
into the hallway and loosened his flex cuffs. (Id.
¶ 14.) Bobertz, Slaughter and Messer were not
“made aware that [Plaintiff] had suffered any sort of
injury during SORT's operation” or that Plaintiff
requested medical attention either during or after the SORT
operation. (Doc. 45 ¶ 19.)
to Plaintiff, at 3:30 a.m. on July 31, 2015, two officers
woke him up and told him to lie on the floor. (Doc. 7 at 5.)
Plaintiff was handcuffed behind his back, yanked to his feet,
and escorted to a multi-purpose room. (Id.)
Plaintiff was then dropped into a chair, causing his cuffed
hands to hit the chair back. (Id.) Plaintiff
immediately felt a sharp, throbbing pain in his right hand.
The injury occurred either while he was being restrained and
lifted up or when he was dropped into the chair.
informed Defendant Messer that something was wrong with his
right hand and that he needed medical attention, but Messer
replied that “this is just a drill, ” “turn
around and shut-up.” (Id. at 6.) Plaintiff
showed Messer his right hand, which was red and swollen, and
Messer said “yes, it is swollen and red but that's
just because you are fighting your ...