Judge 13 Consuelo B. Marshall
How later courts described this case
- Judge 13 Consuelo B. Marshall
Written by the judges who cited it.
The opinion
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6 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 DARRELL BUCKINS,
11 Plaintiff, No. C 19-07969 WHA
12 v.
13 DEPUTY SANCHEZ, et. al., ORDER RE MOTION FOR
SUMMARY JUDGMENT
14 Defendants.
15
16 INTRODUCTION
17 In this Section 1983 action for unconstitutional punishment and retaliation by San
18 Francisco County Sheriff personnel, defendants move for summary judgment. For the below
19 reasons, the motion is GRANTED IN PART AND DENIED IN PART.
20 STATEMENT
21 In 2015, plaintiff Darrell Buckins suffered bilateral tibial plateau fractures, and injured his
22 back and neck in an auto accident. For reasons unrelated to this action, law enforcement
23 arrested him on scene. After surgeries to add pins and at least one metal rod in his legs, he was
24 transferred to San Francisco County Jail, where he remained in pretrial detention through mid-
25 2020. He used a wheelchair, walker, and then a cane. By mid-2016, however, doctors did not
26 prescribe him assistive devices to walk (Murphy Decl. Exh. B at 19:1–20:10; 21:11–17; 23:16–
27 21; 42:6–16, Exh. E; Exh. B at 44:5–7; 46:7–10; 46:18–24; 47:2–21).
1. ASSAULT ON AUGUST 31, 2018.
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Shortly before August 31, 2018, the jail housed plaintiff at County Jail Four, on Bryant
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Street in San Francisco. Raw sewage previously flooded plaintiff’s cell area numerous times.
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Plaintiff formally grieved the incidents. On August 31, the jail transferred plaintiff to County
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Jail Five, the San Bruno location (id. at 26:7–19).
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While walking to the bus to leave County Jail Four, plaintiff complained about pain in his
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legs. Handcuffed, he lay prone on what appears in the surveillance footage to be a linoleum
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floor of the basement at County Jail Four. Deputy Chito Villanueva, a City and County of San
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Francisco Sheriff’s deputy, then dragged plaintiff by his arm, armpit, and perhaps shirt, to an
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elevator. Villanueva ordered plaintiff to his feet and ordered him to walk into the elevator then
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ambulate to the transport vehicle, which the record variously calls a “bus” and a “van.” Plaintiff
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testified that it had three to four steps; the one closest to the ground stood “two to three feet”
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high. Plaintiff “scooted” (presumably, moved using his hands, on his buttocks) up the steps.
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The bus drove to San Bruno (Murphy Decl. Exh. F, Interrogatory No. 1; Murphy Decl. Exh. D at
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00:00–01:41; Exh. B at 113:20–114:10; 115:4–20; 128:12–16).
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After arriving at County Jail Five, plaintiff asked to use the railing to disembark. This
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would require uncuffing him, or at least cuffing his hands in front rather than behind his back.
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Captain Kevin McConnell, apparently in charge at County Jail Five, told deputies not to allow it.
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Plaintiff leaned on the railing and descended painfully. McConnell told plaintiff that grievances
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would not be tolerated and ordered deputies, “Get him.” Eight to ten deputies, including
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Villanueva and Deputy James Sharpe, then “muscled” plaintiff into a holding tank inside the
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jail. McConnell entered as well. Sharpe ordered plaintiff to his knees, shoved him, and plaintiff
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complied. This caused extreme pain due to his prior tibial plateau fractures. Sharpe told
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plaintiff that if complaints continued, an assault would follow, and that Sharpe would claim that
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plaintiff had attacked him first. Either before or after this threat, but after plaintiff voluntarily
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got to his knees, Sharpe punched plaintiff in the ribs and shoved his head against the wall. As
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the record now stands, no medical records document this event. Nor did security footage
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1 capture the events outside County Jail Five or inside the holding tank (id. at 148:12-18; 152:14–
2 17; 150:10–12).
3 2. RETALIATION AND ASSAULT ON NOVEMBER 6, 2018.
4 On November 6, 2018, the jail continued to house plaintiff at County Jail Five. The jail
5 was divided into “pods.” In each, two tiers of two-person cells ringed an open common area.
6 When deputies suspected contraband, procedure dictated a “shakedown.” Deputies remove all
7 residents from the pod to shake down the cells. Deputies started one around 9:30 PM on
8 November 6. Deputy Ruben Sanchez and his partner ordered the twelve men out of their cells
9 and to sit on the floor facing the walls in the jail’s gym and remained to supervise. Thirty
10 minutes to sixty minutes into the search, severe pain in his neck, back, and knees got the best of
11 plaintiff, even though he had frequently shifted positions. He slouched to his elbows (his
12 buttocks and feet still on the floor). He continued facing the wall (Murphy Decl. Exh. E at
13 10:45; Exh. B at 171:5–10; 173:18–24; 172:14–18).
14 Sanchez ordered plaintiff to sit up. Plaintiff replied that he had a medical issue and told
15 Sanchez to look at his housing card. Plaintiff believed that this card indicated medical
16 accommodations. Sanchez did not attempt to view plaintiff’s card and radioed for back up using
17 the penal code for resisting arrest (id. at 173:4–15; 174:4–9; 178:20; 179:1).
18 Sanchez and his partner hauled plaintiff about ten feet towards the center of the gym,
19 flipped him onto his stomach, and handcuffed him very tightly. They “jacked” the cuffs
20 upwards, causing “unbearable” pain to his wrists. Applying bodyweight, they also flexed his
21 knees painfully. At some point thereafter, an estimated twenty-five other deputies arrived,
22 including Deputies Bernard Kaiwi, Ebenezer Espinoza, and a lieutenant in charge of the unit,
23 Gurav Paul. Sanchez punched and kicked plaintiff in the head and body; Kaiwi did as well and
24 added a “knee strike” to plaintiff’s head (id. at 188:15–17; Exh. D at 19:48–21:08; Exh. B at
25 180:3–10; 180:16–181:23; 187:8–17).
26 Deputies next walked plaintiff from the gym to the interview room in pod 1B, adjacent.
27 Deputies pushed his head down while forcing him to walk backwards at a “normal pace,” which,
1 due to plaintiff’s knee injuries, was abnormally fast for him and caused pain (id. at 189:2–5;
2 Exh. D at 21:08; Murphy Decl. Exh. B at 180:18–22).
3 Inside the interview room, defendants forced plaintiff to the floor on his stomach, put a
4 boot on his face and pushed his face into a corner. They added, “Don’t look,” and took off his
5 pants. Deputies punched and kicked plaintiff’s body, bent his knees into unnatural flexion,
6 pressed their body weight onto his legs, and forced his feet into the air. They then left him in
7 that position for thirty minutes. He screamed in pain throughout (id. at 192–93:14–10; 195:9–
8 11; 196:1–16).
9 After the thirty minutes, deputies retrieved plaintiff from the interview room and marched
10 him in the same manner as before (backwards, head pushed down) to pod 2A, the administrative
11 segregation pod. They took him up a flight of stairs into a cell. Plaintiff could not identify any
12 of these deputies with certainty, except for one who is not a defendant. Deputies next forced
13 plaintiff’s joints beyond their range of motion and ordered him to lie on the floor beneath a bunk
14 bed for fifteen minutes. They threatened further assault if he moved (id. at 207:1–11, 209–
15 10:24–6; Exh. D at 24:40–25:58).
16 The second amended (operative) complaint alleges violations of his Fourteenth
17 Amendment rights to be free from punishment (excessive force and deliberate indifference),
18 retaliation for First Amendment-protected speech, and related state claims. The second amended
19 complaint names seventeen sheriff’s department employees and the City and County of San
20 Francisco. Defendants answered. Defendants now move for summary judgment on all claims.
21 On the eve of the hearing, parties stipulated to dismiss all individual defendants whose personal
22 involvement plaintiff could not identify. This order regarding the remaining defendants follows
23 full briefing and oral argument (telephonic due to COVID-19).
24 3. AMERICANS WITH DISABILITIES ACT.
25 Plaintiff’s claims under the ADA fail. Individual deputies are not “public entities” for
26 Title II purposes. See Klamut v. Cal. Highway Patrol, 2015 WL 9024479, at *8 (N.D. Cal. Dec
27 16, 2015) (Judge Maria-Elena Jones). Plaintiff may name defendant City and County of San
1 To state a disability-discrimination claim under Title II, a plaintiff must demonstrate the
2 County excluded him from “benefits,” denied him of the same, or otherwise discriminated
3 against him on account of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th
4 Cir.2004). To recover monetary damages under Title II, a plaintiff must show intentional
5 discrimination. See Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).
6 Plaintiff does not, in his opposition, defend these ADA claims. Nor does he affirmatively
7 waive them. To win on his damages claims, our plaintiff must show defendants’ “knowledge”
8 and “deliberate disregard.” Id. at 1139. Assuming, arguendo, that plaintiff had a disability, the
9 record does not show officers knew of it. No indication of ongoing disability appeared on his
10 August or November 2018 “housing card,” which plaintiff told Sanchez to go read.
11 That plaintiff had no prescribed accommodations cuts against defendants’ intent to
12 discriminate. See Hubbs v. County of San Bernardino, CA, 538 F.Supp.2d 1254 (2008) (Judge
13 Consuelo B. Marshall). While defendant testifies that he told deputies he had medical issues,
14 the record does not show that they understood his limitations. He limped, but not violently so,
15 per the surveillance video. Plaintiff’s movements do not clearly show that jail staff would have
16 known he needed accommodation (see generally Murphy Decl. Exhibit D).
17 As to the ADA claims, the motion is GRANTED.
18 4. SECTION 1983.
19 Section 1983 analysis proceeds in two steps: first, a court determines whether a violation
20 of a constitutional right occurred; second, it requires that officials had “fair notice of the
21 illegality of” their “conduct.” Orn v. City of Tacoma, 949 F.3d 1167, 1174, 1178 (9th Cir.
22 2020).
23 A. FOURTEENTH AMENDMENT – EXCESSIVE FORCE CLAIM.
24 For the reasons that follow, plaintiff’s claims for excessive force arising from the three
25 most egregious assaults may proceed. The others fail.
26 The Constitution protects a pretrial detainee like plaintiff “from . . . excessive force that
27 amounts to punishment” under the Due Process Clause of the Fourteenth Amendment. Kingsley
1 force purposely or knowingly used against him was objectively unreasonable.” Ibid. (emphasis
2 added). The decision added,
3
Considerations such as the following may bear on the reasonableness
4 or unreasonableness of the force used: the relationship between the
need for the use of force and the amount of force used; the extent of
5 the plaintiff's injury; any effort made by the officer to temper or to
limit the amount of force; the severity of the security problem at
6 issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.
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8 Id. at 397.
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(i) August 31, 2018: Dragging Incident.
10 Claim Six alleges an August 2018 excessive use of force by Villanueva. Specifically,
11 Villanueva dragged plaintiff through the hall en route to the transport bus and forced him to
12 stand and board the bus. Video surveillance footage and plaintiff’s testimony confirm that no
13 gratuitous force appears to have been used. Villanueva’s force (however humiliating) served
14 to move plaintiff to the bus for transport, so it had a valid penological purpose. It does not rise
15 to the level of an objectively unreasonable use of force. This claim is DISMISSED.
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(ii) August 31, 2018: Holding Tank Assault.
17 Claim Eleven describes an assault that plaintiff suffered immediately after arriving at
18 County Jail Five, on August 31, 2018. This claim survives against Sharpe for his direct
19 participation; Villanueva sufficiently participated, which precludes summary judgment.
20 (Claim Eleven does not name McConnell.)
21 After arriving at County Jail Five in San Bruno, plaintiff, handcuffed, struggled down the
22 stairs from the bus. McConnell told deputies to refuse plaintiff’s request to use the safety rail.
23 Plaintiff leaned heavily on the safety rail and disembarked with difficulty and in pain.
24 McConnell told deputies, “Get him.” Plaintiff testified that this meant, “Do something to him,
25 hurt him” (Murphy Decl. Exh. B 143:24; 144:1–3).
26 Eight to ten deputies “muscled” plaintiff inside County Jail Five and into a holding tank.
27 Sharpe, Villanueva, and McConnell were among those who “forced him” in the room.
1 “was going to fabricate or falsify an assault charge on a deputy against” plaintiff “to justify
2 beating” him up (id. at 147:2; 148:14–18; 150:15–20).
3 Plaintiff testified:
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Sharpe tried to make me get on my knees on the bench, and I told
5 him that I have a medical condition, and he shoved me into the wall,
my head, forced me to get on my knees, where I had to get, even
6 though I think I might have just got on it by myself with some help
from them. But other than that, it was get down or get hurt. I know
7 the procedure, so I got down on the bench on my knees, and I was
punched. Sharpe pushed my head into the wall. Like I say, Sharpe
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pushed my head into the wall. I could kind of see around. The
9 captain was present, a few other deputies.
10 * * *
He forced me to my knees, punched me in the ribs and pushed my
11 head against the wall.
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Plaintiff testified that this incident left him with bruises, pain, and swelling (“bumps”), but the
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bruising did not appear on his dark complexion (id. at 143:1–12; 150:10–12; 152:14–17; 155:1–
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25).
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Plaintiff had already complied with Sharpe’s command. A reasonable jury may glean
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malicious intent from deputies’ obedience to McConnell’s order, “Get him,” and from Sharpe’s
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verbal threats to beat plaintiff up if he continued to complain, both of which support a violation.
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See Bell v. Wolfish, 441 U.S. 520, 539 (1979) (footnote omitted). Sharpe used objectively
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unreasonable force, at least on this record.
20
Separately, Villanueva is liable for failing to intervene. “Although it is true that there are
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no allegations that” he “took any” physical “action against” plaintiff, jailers may violate
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individuals’ “rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir.
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1995) (quoting Del Raine v. Williford, 32 F.3d 1024, 1038 (7th Cir. 1994)). Our court of appeals
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explained, “A failure of prison officials to act in such circumstances suggests that the officials
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actually wanted the prisoner to suffer the harm.” Ibid. The would-be intervener must have a
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meaningful opportunity to intervene. Opportunity existed, as this incident did not end in a flash.
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1 Sharpe’s threats to beat him and falsify assault charges put Villanueva on notice that the blows
2 aimed to punish.
3 Moreover, it was clear that the violence clearly violated plaintiff’s rights. Our facts closely
4 track those of Hudson v. McMillian, 503 U.S. 1, 9 (1992). There, a deputy attacked an inmate,
5 “in handcuffs and shackles,” punching him in the “mouth, eyes, chest, and stomach while”
6 another deputy “kicked and punched him from behind.” “Minor bruises and swelling of his face,
7 mouth, and lip,” plus loosened teeth, resulted. Id. at 4. The Supreme Court reversed the court of
8 appeals outright. As in McMillian, no resistance justified these deputies’ use of force, and
9 plaintiff’s account of the quantum of physical force appears approximately equal. Jailers should
10 have known it was illegal to “maliciously and sadistically use force,” so qualified immunity does
11 not shield defendants. Id. at 10 (cleaned up).
12 The motion for summary judgment on the August 2018 holding-tank assault is DENIED.
13 (iii) November 6, 2018: Assault in the Gym.
14 A jury must decide Claim One, which alleges excessive force for the assault in the gym.
15 Plaintiff’s sworn testimony about the excessive use of force on November 6, 2018, stands largely
16 unrebutted. Plaintiff has testified to seeing four named defendants: Sanchez, Kaiwi, Espinoza
17 (all of them deputies at County Jail Five) and Paul, a lieutenant in charge of plaintiff’s unit on
18 that day (Murphy Decl. Exh. B 165:4–17).
19 A cell search for contraband (a “shakedown”) precipitated the assault. To conduct the
20 shakedown, deputies ordered everyone out of their cells and into the gym in pod 1A, where they
21 sat on the floor facing the walls. Sanchez and one other guard supervised in the gym. Plaintiff
22 testified that after thirty to sixty minutes of sitting on the floor, he “slouched” to his elbows due
23 to severe pain in his “neck, legs, and back.” (To be clear, this pain stemmed from his residual
24 car-accident injuries.) Sanchez ordered, “Sit up.” Plaintiff informed Sanchez he “had a medical
25 condition” and told him to look at plaintiff’s housing card. Plaintiff erroneously believed this
26 card would show that medical staff had dispensed disability-related accommodations. Sanchez
27 radioed for backup using the penal code section for resisting arrest (“148”) (id. at 173:13; 174:1–
1 Before others arrived, Sanchez grabbed plaintiff by his collar and, with an unnamed
2 partner, dragged him six to ten feet toward the middle of the gym. Plaintiff recounted that
3 Sanchez started the assault. He testified, Sanchez “flipped me over” and jacked up the handcuffs
4 causing “unbearable” pain in his wrists. They “put their weight on my legs . . . . They kicked
5 me. They punched me. They told me to shut up. They laughed at me” (id. at 185–86:18–4;
6 178–179:22–1).
7 Sometime after the handcuffing, plaintiff estimated that twenty-five deputies ran into the
8 gym. At least some joined in. Plaintiff identified one he recognized: “Kaiwi came down with a
9 knee strike to my head . . . . [H]e just came right in and just came down with the leg drop.” At
10 some point, a deputy said out loud, “He wasn't sorry when he was out there robbing people” (id.
11 at 187–88:18–14; 186–187:23–3; 186:15–17).
12 Plaintiff reported that the incident lasted five to ten minutes, but surveillance video shows
13 that ninety seconds elapsed from the radio call for backup to its arrival. This inaccuracy does not
14 refute allegations of kicks and punches. Plaintiff testified that his “face was all bruised up,” and
15 that his arm was x-rayed (and found to be unbroken) (id. at 214–16:1–13).
16 Defendants assert that the undisputed events show reasonable handcuffing and dragging.
17 But plaintiff’s testimony disputes it. No resistance or threat from plaintiff justified “the amount
18 of force used,” i.e. punches, kicks, leg bends, knee-drops. Kingsley, 576 U.S. at 397. Nor do
19 threats, efforts to temper the force used, security risk, or resistance point to deputies’
20 reasonableness.
21 Defendants urge that the lack of medical evidence means no excessive force occurred.
22 Plaintiff need not show documented injury. The “core judicial inquiry” into excessive force, is
23 “not whether a certain quantum of injury was sustained, but rather ‘whether force was applied in
24 a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
25 harm.’” See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S.
26 1, 7 (1992)).
27 Finally, defendants characterize plaintiff as “complain[ing] [that] Deputy Kaiwi’s knee hit
1 plaintiff’s deposition transcript, in which he testified to the knee strike. Meanwhile, they offer
2 no affirmative evidence for their theory that Kaiwi hit plaintiff by accident (ibid.).
3 While plaintiff could not identify Espinoza’s or Paul’s involvement in the gym assault their
4 failure to intervene precludes summary judgment. Plaintiff testified that both arrived after
5 Sanchez flipped plaintiff onto his stomach, which blocked much of his vision. “A failure of
6 prison officials to act in such circumstances suggests that the officials actually wanted the
7 prisoner to suffer the harm.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (quoting
8 Del Raine v. Williford, 32 F.3d 1024, 1038 (7th Cir. 1994)) (cleaned up). Neither intervened in
9 the (at least) 90-second assault, and a jury must decide their liability.
10 The assault (including the force used to apply the handcuffs but excluding the dragging)
11 served no reasonable penological purpose and the force was objectively unreasonable under
12 clearly-established law. See McMillian, 503 U.S. at 10. The motion as to the assault in the gym
13 is, to the extent stated above, DENIED.
14 (iv) November 6, 2018: Interview Room Assault.
15 Claim One refers generally to excessive force conduct that occurred on November 6, 2018.
16 It accuses defendants Kaiwi, Espinoza, and Paul of “issu[ing] knee strikes to [plaintiff’s] body
17 [and] punch[ing] the Plaintiff multiple times in the face and in the body, while Plaintiff was lying
18 on the ground. [And they i]ssued multiple knee strikes to the Plaintiff’s stomach and rib
19 section.” Defendants also kicked and punched plaintiff in the interview room. Since kicks and
20 punches occurred in both instances, this order considers Claim One to cover both (Amd. Compl.
21 ¶ 47).
22 Plaintiff testified that defendants Kaiwi, Espinoza, and Paul put him in the interview room:
23
They got me to the floor. They moved the chairs out, picked me up
24 again, put me in a corner. And then I thought it was Sgt. [sic] Paul,
but it might have been — someone put their boot on my face, but I
25 believe it was Sgt. Paul or Espinoza, one of those. They had put my
face in a corner. I believe I might have said it was Sgt. Paul, but I
26 think it was Espinoza, putting my face in the corner.
27
1 Plaintiff explained his confusion between Paul and Espinoza. At first, he believed Paul put his
2 boot on plaintiff’s face but later heard Espinoza’s voice and thought, “That was [Espinoza] that
3 did it” (Murphy Decl. Exh. B 192–193:14–10).
4 At some point, “Espinoza took [his] pants from [plaintiff], and told [him] to put [his] legs
5 up in the air.” Deputy Kaiwi assaulted him further: “He was punching me and kicked me, bent
6 my legs.” The punches and kicks landed on his body and head. Plaintiff confirmed that “Kaiwi,
7 Espinoza, Paul” participated in the punches and kicks (id. at 195:9–11;196:1; 196:6–7).
8 Kaiwi, with others, also subjected plaintiff to “leg bends” while either he or others applied
9 bodyweight. This would have put one’s knee in extreme flexion, beyond its normal range (ibid.).
10 Espinoza’s undisputed conduct (pulling down plaintiff’s pants and saying “Don’t look”)
11 makes him an integral participant. In Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir. 2004), the
12 decision found that officers knowledgeable about a plan to use illegal flashbangs on a home who
13 provided back up were liable. Similarly, removing plaintiffs’ pants would qualify Espinoza for
14 integral participation, because it rendered plaintiff more vulnerable, humiliated him, and teed
15 him up for the assault that followed. Telling him not to look evinces malice and protected those
16 beating him.
17 Likewise, plaintiff testified that Paul helped to put him in the interview room and Paul
18 remained there for the assault. This also suffices for integral participation. Since this order finds
19 a genuine dispute about Paul’s or Espinoza’s role covering for the assailant(s), it does not reach
20 the question of whether Paul or Espinoza would be liable for failure to intervene.
21 Defendants maintain that the facts are undisputed, but do not concede the facts from
22 plaintiff’s testimony. It bears repeating that no fighting or resistance justified the deputies’
23 conduct here. Therefore, the jailers violated the Fourteenth Amendment and, based on the facts
24 alleged, should have known they were violating clearly established law, so qualified immunity
25 does not shield them. The motion is DENIED.
26 B. FOURTEENTH AMENDMENT – DELIBERATE INDIFFERENCE.
27 Passive violations of incarcerated persons’ constitutional rights require a showing that a
1 substantial risk of serious harm to an inmate and disregards that risk by failing to respond
2 reasonably. Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (quoting Farmer v. Brennan,
3 511 U.S. 825, 837 (1994)). “[T]he defendant’s conduct need only be objectively unreasonable,”
4 not subjectively so. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting
5 Kingsley, 576 U.S. 389, 397) (cleaned up).
6 (i) August 31, 2018: Dragging Incident.
7 Claim Seven accuses Villanueva of violating the Fourteenth Amendment but the record
8 does not indicate Villanueva knew about plaintiff’s disability or that he acted with deliberate
9 indifference in dragging him to the transport bus and forcing him to board. This claim is
10 DISMISSED.
11 (ii) August 31, 2018: Descending Bus Stairs.
12 Claim Nine alleges (against McConnell, Villanueva, and Sharpe) that on August 31, 2018,
13 plaintiff arrived by bus at County Jail Five (San Bruno). McConnell, a sheriff’s captain, awaited
14 the bus in San Bruno. On this point, plaintiff testified that he had never before met or spoken to
15 McConnell. Villanueva, to whom he had complained about pain in his legs while walking to the
16 bus at County Jail Four, remained present. Sharpe participated, as well. Before attempting to
17 disembark, plaintiff said,
18
A: I requested to use the rail . . . .
19
Q: And why weren’t you able to use [the safety rail]?
20
A: The captain said not to let me, that I could walk.
21
22 (Murphy Decl. Exh. B 133:3–5).
23 The foregoing suggests that defendants knew that making plaintiff descend the stairs
24 without the railing would hurt him. McConnell’s statement, “he doesn’t need it” defies the
25 obvious difficulty plaintiff had walking, and his request to use the handrail. Additionally,
26 plaintiff had told Villanueva, who was standing nearby, that he was experiencing severe pain
27 just in walking before boarding the bus. Plaintiff presented no threat. Defendants articulated no
1 reasons for keeping plaintiff cuffed, and — on this record — a reasonable jury could find that
2 this amounted to deliberate indifference.
3 Clearly-established law did not, however, show that it was plainly unlawful to require
4 plaintiff to walk down the stairs from the bus. Qualified immunity bars this claim. Defendant’s
5 motion as to this incident is GRANTED.
6 (iii) August 31, 2018: Kneeling in the Holding Tank.
7 Claim Twelve (against Sharpe and Villanueva) addresses plaintiff’s forced kneeling in the
8 holding tank on August 31, 2018. As described above, a reasonable jury could find Sharpe’s use
9 of force was objectively unreasonable, and Villanueva’s failure to intervene unlawful. This
10 order will not sever the forced kneeling from the accompanying assault. Since Sharpe’s conduct
11 amounted to excessive force, the Court cannot determine defendants are entitled to summary
12 judgment on plaintiff’s Fourteenth Amendment claim for failure to protect from harm. A
13 reasonable jury could conclude that those present disregarded a substantial risk of serious harm.
14 Because this conduct had no penological purpose and other deputies voiced their subjective
15 desires to punish, qualified immunity will not bar this claim. See Bell v. Wolfish, 441 U.S. 520,
16 539 (1979). Defendants have not met their burden, notwithstanding plaintiff’s failure to
17 oppose. See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). Summary judgment for
18 this incident is DENIED.
19 (iv) November 6, 2018: Interview Room Assault and Stress Position.
20 Claim Four (against Sanchez, De Guzman, Kaiwi, Paul, and Espinoza) alleges deliberate
21 indifference for the interview room “stress position” that plaintiff endured on November 6,
22 2018. Defendants counter that forcing plaintiff to lie on his stomach during the thirty minute
23 “cooling-off period” cannot amount to punishment, because it served a “legitimate penological
24 purpose” (Br. at 20).
25 Nothing in our record establishes the need for a cooling period. Furthermore, this order
26 declines to draw an artificial barrier between the holding-tank assault that accompanied the
27 stress hold. Defendants assaulted plaintiff mere seconds before forcing him into the position;
1 Plaintiff screamed “the whole time,” which (viewed in the light most favorable to plaintiff)
2 plausibly means throughout the stress hold as well. Plaintiff adequately alleges a violation of his
3 Fourteenth Amendment right to be free from punishment due to deputies’ deliberate indifference
4 (Murphy Decl. Exh. B 196:15).
5 This violated a clearly-established right. Our court of appeals has held, “[T]he
6 determination of whether a particular condition or restriction imposes punishment in the
7 constitutional sense will generally turn on whether an alternate purpose is reasonably
8 assignable.” Pierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). Evidence of our
9 defendants’ intent to punish is strong. Defendants argue, “[T]here is no credible argument a
10 cooling off period amounts to punishment and no evidence the deputies both knew it was
11 substantially likely their conduct would harm Plaintiff’s federally protected right.” Duvall v.
12 Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).
13 In actuality, the very facts that defendants dispute on the issue of liability (most
14 importantly, the degree of deliberate cruelty that defendants displayed) are the “same” disputed
15 “facts” on which the qualified immunity analysis turns. Martinez v. Stanford, 323 F.3d 1178,
16 1184 (9th Cir. 2003). Defendants had “fair warning” that their punitive disregard for his serious
17 risk of injury violated a clearly-established right. Kennedy v. City of Ridgefield, 439 F.3d 1055,
18 1065 (9th Cir. 2006). With respect to this claim, the motion is DENIED.
19 (v) November 6, 2018: Forced Walking.
20 Claim Two alleges deliberate indifference for forcing plaintiff to walk backwards with
21 guards pressing his head down. It also alleges he was forced to walk up and down stairs in this
22 manner. Fact issues related to how much pain plaintiff conveyed to deputies preclude summary
23 judgment on the existence of a Fourteenth Amendment violation, yet plaintiff does not offer any
24 binding precedent that would have established walking him with his head pushed down,
25 backwards as illegal conduct. Nor does this order note any. The motion is GRANTED.
26 (vi) November 6, 2018: Pod 2A Assault.
27 Plaintiff could not identify any named defendants in Claim Five as the ones who, on
1 lie under a bunk in a cell in Pod 2A. On account of plaintiff’s failure to identify a named
2 defendant among his assailants, the motion is GRANTED.
3 C. FIRST AMENDMENT.
4 Claim fourteen, plaintiff’s First Amendment claim (naming McConnell, Villanueva, and
5 Sharpe) survives in toto.
6
Within the prison context, a viable claim of First Amendment
7 retaliation entails five basic elements: (1) An assertion that a state
actor took some adverse action against an inmate (2) because of (3)
8 that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action
9 did not reasonably advance a legitimate correctional goal.
10
Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). “Of fundamental import to prisoners
11
are their First Amendment ‘right[s] to file prison grievances.’” Id. at 567 (quoting Bruce v.
12
Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003)).
13
Plaintiff testified, “I was moved” “right around the time where I filed the grievance” about
14
sewage flooding at County Jail Four (Murphy Decl. Exh. B at 94:2–3). Once he arrived at
15
County Jail Five, plaintiff recounted,
16
17 And then, when I got my feet on the ground, he just got in my face
and said, “We’re not having no complaints about the sewage floods
18 here at my jail.” He told me to shut the fuck up, don’t say nothing.
And then he asked me did I understand, and when I said, “You just
19 told me don’t say nothing,” he said, “Oh, you want to be a smartass.”
And then he told the deputies surrounding me, that was right there,
20
to get me.
21
22 The assault in the holding tank followed immediately thereafter, with McConnell present (id. at
23 135:1–9).
24 The close timing of plaintiff’s protected conduct (grievances) and his transfer provide an
25 inference of retaliation. McConnell’s statements and the assault that immediately followed do,
26 as well. The assault had not just a likely chilling effect but an actual one. For example, plaintiff
27 waited until the shift was over to report his injuries, fearing retaliation from a deputy who was
1 present during a later attack on November 6, 2018. As discussed, the assaults lacked any
2 legitimate purpose (id. at 214–15:1–25; Br. at 21–22).
3 Defendants retort that the conduct was not “clearly” unconstitutional. Not so. Our facts
4 track those of Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Mr. Rhodes filed
5 grievances related to faulty repairs to his typewriter, deputies threatened to transfer him,
6 assaulted him, destroyed his belongings, tried to frame him for theft, and forced him to strip in a
7 sexually abusive way. Id. at 565. Some of our facts are worse: plaintiff was transferred,
8 something that defendants admit the Rhodes court viewed as retaliatory. McConnell and Sharpe
9 both verbalized the reasons for the assault. Some of our facts differ but appear no less serious:
10 plaintiff was twice beaten, at least once until he screamed, and forced to lie underneath a bunk on
11 threat of harm if he moved. Ibid. The Rhodes decision denied qualified immunity. It held:
12 “[T]he prohibition against retaliatory punishment is ‘clearly established law’ in the Ninth Circuit,
13 for qualified immunity purposes.” Id. (quoting Pratt v. Rowland, 65 F.3d 802, 806, n. 4 (9th Cir.
14 1995)). This fairly informed our defendants of the illegality of beating plaintiff in retaliation for
15 grievances. The motion for summary judgment on this claim is DENIED.
16 D. STATE LAW CLAIMS.
17 Plaintiff also alleges state law claims for negligence and battery, and under the Bane Act.
18 As these claims arise out of the same facts as the federal claims, this order retains supplemental
19 jurisdiction. See Satey v. JP Morgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008). Under
20 the California Tort Claims Act, a plaintiff alleging torts by “public entity or public employee for
21 ‘money or damages’” may not proceed “unless a timely written claim has been presented to and
22 denied by the public entity.” Arzola v. Robles, No. 120CV00816NONESKO, 2021 WL 795667,
23 at *2 (E.D. Cal. Mar. 2, 2021) (Judge Sheila K. Oberto) (quoting Cal. Gov. Code § 945.4).
24 Our plaintiff seeks money damages. He, through counsel, filed a written complaint with
25 the City and County of San Francisco on May 8, 2019, and defendants do not contest its
26 timeliness. In it, plaintiff reported the November 6, 2018, incident. Defendants argue
27 inadequacy because the complaint stated “1:30 P.M.,” not 9:30 P.M. The City and County could
1 Moreover, the city denied the complaint. His tort claims for damages arising out of the
2 November 2018 incident may be decided on their merits (Murphy Decl. ¶ 8, Ex. G).
3 (i) Negligence.
4 Plaintiff alleges negligence as to all incidents in this action. Section 945.4 bars a state-law
5 claim for the August 2018 incident. Under California law, the elements of a negligence claim
6 include (1) defendant’s obligation to conform to a certain standard of conduct for the protection
7 of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the
8 duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries
9 (proximate cause); and (4) actual loss (damages). See Corales v. Bennett, 567 F.3d 554, 572 (9th
10 Cir. 2009). To the extent that excessive force and deliberate indifference claims survive above,
11 plaintiff has produced facts to show that McConnell, Villanueva, Sharpe, Sanchez, Espinoza,
12 Kaiwi, and Paul all failed to conform to the duty of care they owed plaintiff. The City and
13 County of San Francisco also faces this claim of negligence. Defendants simply argue that no
14 Fourteenth Amendment violation occurred. The record supports the four elements of negligence,
15 for reasons stated above. Therefore, the motion for summary judgment for negligence is
16 DENIED.
17 (ii) Battery.
18 Plaintiff’s battery claim alleges a November 6, 2018, tort. “A battery is any willful and
19 unlawful use of force or violence upon the person of another.” Cal. Pen. Code, § 242. “The
20 slightest degree of touching is sufficient.” In re B.L., 239 Cal. App. 4th 1491, 1495 (2015)
21 (quoting People v. Myers (1998) 61 Cal.App.4th 328, 335)). The battery claim may proceed
22 against Sanchez and Kaiwi for the gym assault. Since Kaiwi, Paul, and Espinoza all, at a
23 minimum, “put” plaintiff in the interview room, this claim survives as to that incident against all
24 three. The motion is DENIED.
25 (iii) Bane Act.
26 The Bane Act Claim survives against Sanchez for the November incident in the gym; and
27 against Kaiwi, Espinoza, and Paul for the assault in the interview room, all on November 6.
1 With respect to the November assault in the gym, some assailant said, “He wasn’t sorry
2 when he was out there robbing people.” At least some laughed and told him to shut up. This
3 would allow a reasonable jury to infer intent (id. at 185—86:18—4; 178-79:22-1).
4 Regarding the November assault in the interview room, the statements show malicious
5 intent: “Don’t look,” “You like to write grievances?!” “What hand do you write with?” and
6 “Break it!” (id. 194:1—3; 15-20).
7 The motion is DENIED.
8 CONCLUSION
9 Sharpe, Kaiwi, Espinoza, Villanueva, Sanchez, McConnell, and Paul are the only
10 defendants left in the suit and all must proceed to trial. Each claim survives against the
11 individual defendants to the extent stated above.
12 The motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
5 13 The Court adds that in the above rulings, it has been required by law to credit the
14 opposing side’s evidence, here plaintiff's evidence. The Court has not made findings in
15 plaintiff's favor. It will be up to the jury to decide who is telling the truth as to what happened.
16
17 IT IS SO ORDERED.
18
19 |] Dated: April 9, 2021. Pee
20 L _
WILLIAM ALSUP
21 UNITED STATES DISTRICT JUDGE
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