The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
TRAVIS SCOTT KING, et al., Case No. 19-cv-07722-VC
Plaintiffs,
ORDER GRANTING MOTIONS FOR
v. SUMMARY JUDGMENT AND
DENYING MOTION TO SEAL
DEMICHAEL DEWS, et al.,
Re: Dkt. Nos. 73, 76, 86
Defendants.
The defendants’ motions for summary judgment are granted.
1. Based on the uncontroverted evidence in the summary judgment record, no Eighth
Amendment violation occurred. The evidence uniformly shows that an altercation between King
and the officers that began in King’s hospital room spilled into the hospital hallway. See, e.g.,
Schwaiger Decl., Ex. EE (hospital security video); Dkt. No. 85-1, at 252–54 (McFarland
deposition); Dkt. No. 85-1, at 297–98 (Munsell deposition). After following King into the
hallway, Sergeant Dews tackled him to the ground. Dkt. No. 85-1, at 195–99 (Dews deposition).
While Dews used his bodyweight to try to restrain King, Officers Nee and Tran secured King in
four-point restraints, an endeavor that took “a couple of minutes total.” Id. at 70–72 (Tran
deposition); id. at 467 (Nee deposition); see also Dkt. No. 73-1, at 7 (Dews declaration)
(handcuffs were secured “mid struggle or late struggle” to the best of Dews’ memory).
Throughout this time, and even after he was restrained, King continued to struggle, and Dews
and Tran, with some help from nearby hospital staff, continued to use their bodyweight to
restrain him. See, e.g., Dkt. No. 73-1, at 7 (Dews declaration); Dkt. No. 74, at 99 (Tays
deposition); Dkt. No. 85-1, at 538 (Dittmar deposition); Dkt. No. 85-1, at 260–61 (McFarland
deposition).
A doctor on the hospital’s rapid response team was called to the scene and prescribed an
antipsychotic medication to calm King down. Dkt. No. 85-1, at 538 (Dittmar deposition); Dkt.
No. 74, at 214–15 (McFarland deposition). After the injection was administered, King stopped
struggling, and everyone involved in the physical restraint released their hold on him. Dkt. No.
73-1, at 8 (Dews declaration); Dkt. No. 74, at 240 (Bondurant deposition). Only after this
occurred did a nurse raise a concern that King was not breathing. Henkels Decl., Exs. B & D
(body-cam footage). Until that time, no one in the crowd of medical personnel observing the
events had expressed concerns about King’s medical condition. According to video footage, the
incident in the hallway lasted a little more than nine minutes. See Henkels Decl., Ex. G (hospital
security video).1
“Where a prison security measure is undertaken to resolve a disturbance[] . . . that
indisputably poses significant risks to the safety of inmates and prison staff,” the force a prison
official uses does not violate the Eighth Amendment when it is “applied in a good faith effort to
maintain or restore discipline” rather than “‘maliciously and sadistically for the very purpose of
causing harm.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986) (internal quotations omitted); see
also Johnson v. Lewis, 217 F.3d 726, 733 (9th Cir. 2000). King’s escape from his room to the
hospital hallway was indisputably a disturbance that posed a significant risk to the medical
personnel, patients, and guests on the hospital floor, the officers, and King himself. The situation
remained volatile even after he was secured in four-point restraints. He continued to struggle, so
much so that hospital employees helped the officers hold him down and a hospital doctor
eventually prescribed an antipsychotic medication to calm him. Once the sedative was
administered and King stopped struggling, the officers took their weight off him. Prior to that
time, there is no indication they did anything beyond what was necessary to restore order and
1 Nurse McFarland testified that people were still restraining King when she raised concerns that
he was not breathing. See Dkt. No. 85-1, at 263 (McFarland deposition). This is directly
contradicted by the video evidence and therefore creates no genuine dispute.
ensure the safety of staff and patients. No reasonable juror could infer, from the evidence
presented at summary judgment, the kind of malicious intent necessary to find an Eighth
Amendment violation in an emergency situation like this.2
The closest King comes to creating a genuine dispute of material fact is with the
deposition testimony of Standridge, a hospital security guard. Standridge testified that King was
“pretty much . . . under control” by the time he arrived. Dkt. 85-1, at 510. When he joined the
officers in restraining King, he testified that King’s arm was making “slow movements,” not
“sudden jerks.” Id. at 506–07. Standridge never saw King try to hit or kick anyone in the
hallway, lift himself off the ground, or “aggressively try[] to get free from the hold of the
officers.” Id. at 507–08. Consistent with this testimony, King contends that there is a difference
between struggling to resist and struggling to breathe and that he was doing the latter.
But even Standridge’s testimony does not create a genuine dispute of material fact. For
one, Standridge’s testimony is vague as to time; it is unclear at what point Standridge joined the
fray and how long he assisted in the restraint of King. But more importantly (and alone
sufficient), even Standridge admits the material point summary judgment turns on: King
continued to struggle after he was secured in four-point restraints. In the midst of a chaotic
situation, the officers had to make decisions “in haste, under pressure, and frequently without the
luxury of a second chance.” Whitley, 475 U.S. at 320. Given the nature of the threat to the public,
the officers were permitted to continue applying force for as long as King continued to struggle.
Id.3
2 King contends that the deliberate indifference standard should govern his claim because there
was no longer an emergency after he was secured in four-point restraints. See Johnson, 217 F.3d
at 733–34 (explaining how the Eighth Amendment inquiry differs in a situation where exigent
circumstances do not exist). But the record makes clear that the exigency persisted for as long as
King continued to struggle in the middle of the hospital hallway surrounded by members of the
public. Even applying the deliberate indifference standard, however, there was no Eighth
Amendment violation as a matter of law (and the defendants would be entitled to qualified
immunity if there was).
3 For the same reasons, King has not created a genuine dispute of material fact that the officers’
conduct shocked the conscience, thereby violating the Fourteenth Amendment (or the First
Amendment, as King alternatively alleges).
2. Even if the evidence supported King’s characterization of the facts—that after he was
placed in four-point restraints, his continued movement reflected a struggle to breathe rather than
ongoing resistance—the officers would be entitled to qualified immunity.
The contours of the Eighth Amendment right in these circumstances are not clearly
established. King has not pointed to a case finding an Eighth Amendment violation on facts
resembling these. The cases he relies upon discuss violations of the Fourth Amendment. See
Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2240–41 (2021); Drummond ex rel. Drummond
v. City of Anaheim, 343 F.3d 1052, 1053–54 (9th Cir. 2003); Greer v. City of Hayward, 229 F.
Supp. 3d 1091, 1094 (N.D. Cal. 2017). But the Eighth Amendment standard governing the
conduct of a prison official responding to a safety threat is very different. Whitley, 475 U.S. at
319.4
King need not identify a comparable case if the constitutional violation was so obvious
that any reasonable officer would have known they were committing it. See Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018). But here, it was not obvious that the officers needed to stop their
bodyweight restraint of King earlier than they did. Until the injection was administered, King
continued to struggle. At that time, he was still located in the hallway of a public hospital,
surrounded by medical personnel and, presumably, members of the public. And a reasonable
officer in that situation could have interpreted his struggling as continued resistance, especially
given that none of the observing doctors or nurses raised concerns about King’s medical
condition until the officers released their bodyweight restraint. In such circumstances, the
officers are entitled to qualified immunity.5
* * *
Dews’ objection to the jail call between King and his sister on relevance grounds is
4 While Greer also discusses a Fourteenth Amendment claim, it does so primarily under the
deliberate indifference standard. See 229 F. Supp. 3d at 1108. The discussion of the purpose-to-
harm standard is cursory and not alone sufficient to put any reasonable officer on notice that the
conduct here was unlawful.
5 For the same reasons, King has not shown that the officers are not entitled to qualified
immunity on his First and Fourteenth Amendment claims.
denied. King’s motion to seal is also denied without prejudice. It is not enough to state that the
documents sought to be sealed are subject to the stipulated protective order. The motion must
explain why there is a compelling reason that the information should be rendered inaccessible to
the public. See Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir.
2016). Within 7 days, King must file either a renewed motion explaining why that standard is
satisfied here or the unredacted documents on the docket.
IT IS SO ORDERED.
Dated: May 12, 2022 Loo. -
VINCE CHHABRIA
United States District Judge