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Williams v. Mooney

United States District Court, D. Arizona

September 17, 2018

DaJuan Torrell Williams, Plaintiff,
v.
Mooney, et al., Defendants.

          ORDER AND ORDER TO SHOW CAUSE

          David G. Campbell Senior United States District Judge

         Plaintiff DaJuan Torrell Williams brought this civil rights action under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) Sergeants Brenden Mooney, Jesse Bilbay, and Daniel Ostrander. (Doc. 18.) Before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Motion for Special Court Order, which is construed as a Motion for Preliminary Injunction. (Docs. 43, 53.) The Court will grant Defendants' Motion in part and deny it in part, deny Plaintiff's Motion, and direct Plaintiff to show cause why the remaining Doe Defendants should not be dismissed.

         I. Background

         In Count I of his First Amended Complaint, Plaintiff alleged that on April 5, 2015, Defendant Mooney used excessive force against him when Plaintiff was handcuffed and not resisting in anyway. (Doc. 18 at 5-6.) In Count VII, Plaintiff alleged that Defendant Bilbay failed to ensure that Plaintiff received timely medical attention for his injuries following the excessive force incident despite Plaintiff's requests. (Id. at 12.) In Count XI, Plaintiff alleged that Defendant Ostrander also failed to ensure that Plaintiff received medical assistance. (Id. at 17.) Upon screening, the Court determined that Plaintiff stated an excessive force claim against Mooney and medical care claims against Bilbay and Ostrander and directed these Defendants to respond. (Doc. 19.)[1]

         Defendants move for summary judgment on the grounds that (1) Mooney's actions did not constitute excessive use of force under the Eighth Amendment, (2) Plaintiff did not have a serious medical need, (3) Bilbay and Ostrander were not deliberately indifferent, and (4) Plaintiff did not suffer harm as a result of the delay in medical treatment. (Doc. 43.)

         On May 7, 2018, Plaintiff filed his opposition to Defendants' Motion. (Doc. 52.) A week later, he filed a Motion for Special Court Order, which the Court construes as a Motion for Preliminary Injunction. (Doc. 53.)

         II. Motion for Preliminary Injunction

         In his Motion, Plaintiff states that he was transferred to maximum custody on May 8, 2018, and all of his personal property-including legal paperwork-was confiscated, thereby hindering his ability to litigate this action and access the courts. (Doc. 53.) He seeks an order directing ADC to return his personal property and he requests that the Court provide copies to him of this filing because he is presently unable to get any staff assistance or obtain copies. (Id.)

         Plaintiff filed the identical motion for injunctive relief in a separate civil rights action, Williams v. Ryan, et al., CV 17-01833-PHX-DGC (DMF). In a July 5, 2018 order, the Court denied Plaintiff's request after determining that he failed to allege sufficient facts to establish actual injury. (CV 17-01833-PHX-DGC (DMF), Doc. 43.) See Silva v. De Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2015) (to support an active interference claim, a prisoner must allege facts showing that officials' actions hindered the ability to litigate and that, as a result, the prisoner suffered an actual injury), overruled on other grounds by Richey v. Dahne, 807 F.3d 1202, 1209 n.2 (9th Cir. 2015). Thus, the Court has already addressed Plaintiff's request for injunctive relief and, for reasons set forth in the July 5, 2018 order, finds that Plaintiff cannot demonstrate actual injury. The Court will deny Plaintiff's Motion for Preliminary Injunction.

         III. Summary Judgment Standard

         A court 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 those 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.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then 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).

         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. In its analysis, the court does not make credibility determinations; it must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). Where the nonmovant is a pro se litigant, the court must consider as evidence in opposition to summary judgment all of the nonmovant's contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

         IV. Relevant Facts

         On April 5, 2015, at approximately 5:00 p.m., Plaintiff was returning from recreation and was going to take a shower. (Doc. 44, Defs.' Statement of Facts 2 & Ex. 2, Pl. Dep. 20:7-8, Nov. 16, 2017 (Doc. 44-1 at 16).) Plaintiff was handcuffed and escorted by Officer Gutierrez, and asked Gutierrez if he could get Plaintiff some shower shoes. (Id., Ex. 2, Pl. Dep. 20:1-18, 25:16-18.) According to Plaintiff, everyone shares a shower and no one would take a shower barefoot. In fact, the prison provides everyone with shower shoes when they first arrive. (Id. 31:5-20.) Plaintiff did not have his shower shoes because he had just been moved and all his property-including his shower shoes-had been extracted from his cell and had not yet been returned. (Id. 32:1-11.) Gutierrez said he would look and see if he could find some shower shoes and proceeded to put Plaintiff in the shower, but Plaintiff said that he would wait in his nearby cell while Gutierrez got the shoes. (Id. 20:12-24.) The prisoner in the cell next to Plaintiff's attempted to let Plaintiff borrow his shower shoes, but Gutierrez would not allow it. (Doc. 52, Ex. 2, Sudiata Decl. at 1.)

         Gutierrez escorted Plaintiff into his cell and locked the cell. (Doc. 44, Ex. 2, Pl. Dep. 22:9-16, 23:5-6.) Normal procedure provides that officers lock the cell door and then open the trap in the cell door to uncuff the prisoner. (Id. 22:19-25.) Gutierrez opened the trap to take off Plaintiff's handcuffs, but Plaintiff said he would wait until Gutierrez came back with the shower shoes. (Id. 23:6-8.) Plaintiff thought that Gutierrez would just go grab the shower shoes and come back so it was unnecessary to uncuff him and come right back and cuff him again. (Id. 23:21-24:1.) In response, Gutierrez slammed the trap door shut and said “now you ain't getting shit, ” and left. (Id. 23:9-11.)

         After Gutierrez left, Plaintiff “jumped” his handcuffs, meaning he moved his cuffed hands from behind his back to the front of his body. (Id. 48:13-24, 49:5-16.) About 10 minutes later, Gutierrez came back to Plaintiff's cell. (Id. 26:1-6.) Gutierrez asked if Plaintiff was ready to uncuff. Plaintiff refused to uncuff and told Gutierrez to get a sergeant. (Id. 26:11-24.) Gutierrez said “all right, ” and he left. (Id. 26:23-27:2.)

         About 20 minutes after Gutierrez left, Officer Lopez came to Plaintiff's cell and asked what was going on. (Id. 29:2-14.) Plaintiff told her that he was waiting for the sergeant, and when she asked what the problem was, he explained that he was trying to get some shower shoes. (Id. 30:1-15.) Lopez said that the sergeant was on his way, and she left. (Id. 30:16-23.)

         About 15 minutes after Lopez left, Mooney and seven other officers arrived at Plaintiff's cell. (Id. 36:16-22, 37:4-8.)[2] Mooney opened the trap door and said “give me those fucking cuffs.” (Id., Ex. 2, Pl. Dep. 38:12-23.) Plaintiff got up from his bunk and went to open his mouth, at which point Mooney said “I'm not talking to you until you give me those fucking cuffs.” Plaintiff turned around and sat back down on his bunk. (Id. 39:3-9.) Mooney asked Plaintiff why he was acting like a little bitch, to which Plaintiff did not reply. (Id. 40:13-22.) Mooney then asked Plaintiff if he wanted the officers to spray him and “come in there and fuck you up and take all your property.” (Id. 40:23-41:1.) In response, Plaintiff challenged Mooney to call an Incident Command System (ICS) and do everything he was threatening to do. (Id. 41:24-42:4.)[3]

         At that point, Mooney pulled the pin in the door, which must be pulled before the cell door can open, and he instructed “control” to open the cell door. (Id. 42:20-43:20, 44:6-14.) The cell door opened, and Mooney and four or five other officers entered the cell. (Id. 44:16-45:3.) Plaintiff stood up as they entered the cell, and Mooney grabbed Plaintiff's face and pushed it down. (Id. 48:4-9, 51:6-12.) Plaintiff resisted the pressure to go down, but he did not move his hands-which were in front of him-or try to fight or grab anyone. (Id. 52:24-53:6.) Mooney and the officers were shoving and pulling Plaintiff in different directions, trying to get him to the floor. (Id. 55:12-17.) Plaintiff was resisting, and they were all tussling and wrestling. At some point, Plaintiff ended up face down on the floor with his hands above his head. (Id. 56:5-17, 57:2-4.) At least two officers were holding Plaintiff's hands and kneeling on his arms. Other officers were kneeling on his legs. (Id. 57:6-9.) Someone got on Plaintiff's back, grabbed his face and pulled his neck back, thereby choking Plaintiff. (Id. 57:16-58:7.) Plaintiff continued to move and tried to get up. (Id. 58:18-59:9.) Plaintiff could not breathe. (Id. 61:7.)

         While the officers were on top of Plaintiff, they removed his cuffs and pulled his hands behind his back. (Id. 68:20-25.) At least four officers were still holding Plaintiff down, and Plaintiff was no longer resisting at all. (Id. 69:3-12.) An officer asked Mooney if he wanted them to put the cuffs back on Plaintiff, and Mooney said no. (Id. 68:25-2, 68:18-20.) Mooney ordered the officers to get Plaintiff up and hold his arms. The officers lifted Plaintiff off the floor and then slammed him against the wall, smashed his face into the wall, and held him there. (Id. 69:23-70:2; Doc. 52 at 3.) The officers began to back up towards the cell door while still holding on to Plaintiff's arms. (Doc. 44, Ex. 2, Pl. Dep. 70:14-16, 71:13-21.) When all the officers were outside of the cell, they started to close the door and released Plaintiff's arms as the door closed. (Id. 72:12- 19.) Plaintiff did not say anything to the officers, and they left. (Id. 72:22-25.)

         At 6:00 p.m. that same day, Officer Pyle completed an Information Report on the incident involving Plaintiff. (Doc. 44, Ex. 1, Attach. A (Doc. 44-1 at 8).) In this Report, Pyle wrote that he and Gutierrez escorted Plaintiff from recreation to his cell, but at his cell, Plaintiff would not uncuff after several verbal directives. (Id.) Pyle wrote that he then called Mooney, and after several directives from Mooney, Plaintiff placed his hands in the trap and they removed his cuffs. (Id.)

         Plaintiff waited until 10:00 p.m., when there was a shift change, and then, about 10:15 p.m., asked the officer conducting a walk through if he could speak to a lieutenant. The officer said there were no lieutenants on shift. (Id., Ex. 2, Pl. Dep. 80:20-81:11, 81:22-82:1.) Plaintiff asked the officer who the shift commander was, and the officer said Sergeant Bilbay. Plaintiff requested that the officer ask Bilbay to speak with Plaintiff and said that it was an emergency situation. (Id. 82:1-5.)

         The same officer conducted another walk through around 11:15 p.m. and told Plaintiff that he had informed Bilbay of Plaintiff's request. (Id. 82:10-14.) Plaintiff told the officer that it was an emergency and that he was requesting medical treatment, but he did not want to tell the officer what the issue was about and preferred to speak to the shift commander. (Id. 82:14-21.)

         Plaintiff then wrote out his first emergency informal grievance, in which he detailed the incident that occurred with Mooney and the other officers. (Id. 82:22-25; Doc. 52, Ex. 3 (Doc. 52 at 21).) When the same officer did his 12:00 a.m. walk through, Plaintiff again requested to speak to Bilbay, stated that he was seeking medical treatment, and handed the officer the emergency grievance. (Doc. 44, Ex. 2, Pl. Dep. 82:25-83:7.) The officer assured Plaintiff that he would make sure Bilbay got the grievance. (Id. 82:7-8.)

         At 1:00 a.m., the officer returned and told Plaintiff he had read the grievance and had spoken to Bilbay, and that Bilbay was going to come talk to Plaintiff. (Id. 83:9-13.) The officer said that he did not want to get involved, so he was returning the emergency ...


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