United States District Court, D. Arizona
ORDER AND ORDER TO SHOW CAUSE
G. Campbell Senior United States District Judge
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.
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.)
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.
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.)
Motion for Preliminary Injunction
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.)
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.
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 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.
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.
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).
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.)
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.)
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.
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.)
15 minutes after Lopez left, Mooney and seven other officers
arrived at Plaintiff's cell. (Id. 36:16-22,
37:4-8.) 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.
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.)
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.)
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
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.)
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.)
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.)
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 ...