Lees v. CDCR/SVSP-LVN Singsong

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ALEXANDER LEES, Case No. 19-cv-01603-HSG

8 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART MOTION FOR

9 v. SUMMARY JUDGMENT; GRANTING

MOTION TO SEAL; REFERRING

10 J. MARISCAL, et al., CASE TO SETTLEMENT; STAYING

ACTION

11 Defendants.

Re: Dkt. Nos. 57, 65

12

13

14 Plaintiff, a prisoner housed at Salinas Valley State Prison (“SVSP”), has filed this pro se

15 civil rights action under 42 U.S.C. § 1983 against SVSP officers Hogeland, Ponce, and Mariscal,

16 alleging that they used excessive force on him in violation of the Eighth Amendment and violated

17 his due process rights by falsely accusing him of assaulting staff members. Dkt. Nos. 22, 26.

18 Now pending before the Court is Defendants’ motion for summary judgment. Dkt. No. 57.

19 Plaintiff has filed an opposition, Dkt. No. 60 and Defendants have filed a reply, Dkt. Nos. 64, 65.

20 Also pending before the Court is Defendants’ motion to seal certain documents filed in support of

21 their reply. Dkt. No. 65. For the reasons set forth below, the Court GRANTS IN PART AND

22 DENIES IN PART Defendants’ motion for summary judgment, Dkt. No. 57, and GRANTS

23 Defendants’ motion to seal, Dkt. No. 65.

24 BACKGROUND

25 The following facts are undisputed unless otherwise noted.

26 Plaintiff is a California inmate serving a life sentence without the possibility of parole.

27 Dkt. No. 57-2 at 88-90.

1 Hogeland, Ponce, and Mariscal were posted at Facility B as yard officers. Dkt. No. 22 at 6; Dkt.

2 No. 57-3 (“Hogeland Decl.”), ¶ 1; Dkt. No. 57-5 (“Ponce Decl.”), ¶ 1; Dkt. No. 57-4 (“Mariscal

3 Decl.”), ¶ 1. As yard officers, Defendants were required to respond to alarms. Hogeland Decl., ¶

4 1; Ponce Decl., ¶ 1; Mariscal Decl., ¶ 1. Plaintiff is medically classified as obese; is

5 claustrophobic; has degenerative disc disease; and was diagnosed with mild nerve compromise at

6 or near his left calf and ankle. Dkt. No. 22 at 3, 11-13; Dkt. No. 60 at 6.

7 That day, Plaintiff was involved in a fight with inmate Gray in the dayroom of Facility B,

8 Building 5. Dkt. No. 57-2 at 71-72. Typical protocol after an inmate fight is to escort the inmates

9 involved to the gym, which is located about 100 yards from Facility B. The medical office is

10 located about halfway between the gym and Facility B. In the gym, the inmates are placed in

11 holding cells where they await evaluation by medical staff. Medical staff go to the holding cell to

12 evaluate inmates for injuries and other medical concerns. Hogeland Decl., ¶ 6; Ponce Decl., ¶ 6;

13 Mariscal Decl., ¶ 6. The holding cells are about three to four feet in length and width, and have a

14 stool and desk for the inmate to use. Hogeland Decl., ¶ 6; Ponce Decl., ¶ 6; Mariscal Decl., ¶ 5.

15 Inmates can stand in the cell but it is not possible to stretch. Hogeland Decl., ¶ 6; Ponce Decl., ¶

16 6; Mariscal Decl., ¶ 5l; Dkt. No. 60 at 6.

17 The parties have differing accounts as to what happened next.

18 Plaintiff alleges the following. After the fight, Plaintiff was lying on the floor, suffering

19 excruciating pain from back spasms and severe leg cramps. Dkt. No. 22 at 4. He was then

20 escorted from the building by defendant Marsical. Defendant Hogeland was not present. Dkt. No.

21 60 at 12. Plaintiff was approximately thirty to forty yards from the B-Facility medical clinic

22 when his cramps and spasms caused him to fall to the floor. Plaintiff was carried into the medical

23 clinic, but correctional officials accused him of faking his pain. Defendants removed Plaintiff

24 from the medical clinic, put him into a wheelchair, and wheeled him out of the medical clinic to

25 the gym. When Plaintiff arrived at the gym, he refused to get into the cell, stating that his pain

26 was too severe and that he was claustrophobic. Dkt. No. 22 at 5. Defendants grabbed Plaintiff out

27 of the wheelchair and, in a hate-filled racist rage, started beating and pummeling him. Dkt. No. 22

1 Dkt. No. 60 at 18.

2 Defendants allege the following. Both defendants Mariscal and Hogeland arrived at

3 Facility B in response to the alarm. They cuffed Plaintiff’s hands behind his back, and jointly

4 started escorting Plaintiff to the gym. Hogeland Decl., ¶ 4; Mariscal Decl. ¶ 5. Plaintiff left the

5 building without issue. But, upon leaving the yard, Plaintiff began complaining about leg cramps

6 and back spasms. Hogeland Decl., ¶ 4; Mariscal Decl. ¶ 4, Dkt. No. 60 at 6. Defendants Mariscal

7 and Hogeland called over the radio to defendant Ponce, who was stationed near the medical office,

8 requesting a wheelchair. Hogeland Decl., ¶ 4; Mariscal Decl. ¶ 4; Ponce Decl., ¶ 3. Defendant

9 Ponce brought the wheelchair over and Plaintiff got in. Hogeland Decl., ¶ 5; Mariscal Decl. ¶ 4;

10 Ponce Decl., ¶ 4. Defendants wheeled Plaintiff to a holding cell and asked him to enter the cell.

11 Hogeland Decl., ¶ 7; Mariscal Decl. ¶ 6; Ponce Decl., ¶ 7. Plaintiff stated that he had cramps, so

12 Defendants gave Plaintiff a couple minutes to sit in the wheelchair in the hopes that the cramps

13 would subside. Hogeland Decl., ¶ 7; Mariscal Decl. ¶ 6; Ponce Decl., ¶ 7. A couple minutes later,

14 Defendants again asked Plaintiff to stand and walk into the cell. Plaintiff again stated that the

15 cramps had not subsided. Plaintiff stood up on his own to enter the cell. Defendants assisted

16 Plaintiff by providing stability to a standing position. Plaintiff then became resistive. He placed

17 his right foot onto the stool in the holding cell and pushed his body into defendant Marsical, who

18 was behind him. Plaintiff was also swinging from left to right, as if to escape from Defendants’

19 grasp. Hogeland Decl., ¶ 8; Mariscal Decl. ¶¶ 7-8; Ponce Decl., ¶ 8. Defendants ordered Plaintiff

20 to stop resisting and get on the ground, but Plaintiff continued to resist. Plaintiff struck defendant

21 Ponce in the rib area and defendant Ponce yelled that Plaintiff had elbowed him. Plaintiff kicked

22 backwards with his left foot and struck defendant Marsical. Hogeland Decl., ¶¶ 8-9; Mariscal

23 Decl. ¶¶ 7-8; Ponce Decl., ¶¶ 8-9. Experience and training informed Defendants that the safest

24 place to subdue an inmate was on the ground. Defendants therefore took Plaintiff to the ground.

25 Defendant Hogeland held Plaintiff’s right arm and utilized leftward force; defendant Marsical

26 placed his hands around Plaintiff’s upper back and provided force; and defendant Ponce placed his

27 right hand on Plaintiff’s upper left arm area and his left hand on Plaintiff’s left forearm area.

1 ground. Defendant Hogeland then hit the radio alarm and defendant Marsical issued a Code 1 on

2 the radio. Once Plaintiff was on the ground, Defendants utilized their body weight to hold

3 Plaintiff down until responding staff could arrive. Defendant Hogeland used his weight to secure

4 Plaintiff’s right side and arm; defendant Marsical held Plaintiff down with his left hand on

5 Plaintiff’s back and his right arm on Plaintiff’s right forearm; and defendant Ponce held onto

6 Plaintiff’s left side to maintain control of Plaintiff. Defendant Ponce’s right arm was pinned under

7 Plaintiff’s left arm and chest. Hogeland Decl., ¶¶ 9-10; Mariscal Decl. ¶¶ 9-10; Ponce Decl., ¶¶ 9-

8 11.

9 The subsequent events are undisputed unless otherwise noted.

10 Responding staff secured Plaintiff in waist restraints. Afterwards, defendant Marsical

11 sought medical treatment for his right wrist and defendant Ponce sought medical treatment for his

12 right wrist and arm. As a result of the injury that defendant Ponce received from the incident, he

13 had to take four months off work and receive physical therapy. Hogeland Decl., ¶ 10; Mariscal

14 Decl. ¶ 10; Ponce Decl., ¶ 12.

15 On April 15, 2017, Plaintiff was issued a rules violation for battery on a non-prisoner with

16 respect to the incident on April 2, 2017. Dkt. No. 57-2 at 39-44. That same day, Plaintiff also

17 received other relevant documents, including a medical evaluation report, a mental health

18 assessment report, and photographs related to the incident. Dkt. No. 57-2 at 182. Plaintiff alleges

19 that the RVR is based on Defendants’ false statements that he committed battery on defendants

20 Marsical and Ponce. Dkt. No. 22 at 6. Through an investigative employee, Plaintiff was able to

21 ask questions of staff member Garcia1 and inmate Gray. Dkt. No. 57-2 at 47, 55-56. According to

22 the record, on May 2, 2017, in response to questions posed by Plaintiff, Inmate Gray indicated the

23 following. On April 2, 2017, inmate Gray was placed in a B-Facility holding cage located in B-

24 Facility Gym and had a direct line of sight. Inmate Gray never saw Plaintiff resist; elbow, kick, or

25 jump kick any correctional officer; be argumentative or combative; or struggle, kick, or curse.

26

27

1 Staff member Garcia’s answers concern Plaintiff’s behavior when he initially stopped in front of

1 Inmate Gray did hear a correctional officer yell, “Stop, you’re elbowing me.” Dkt. No. 57-2 at 55-

2 56.

3 On May 9, 2017, the disciplinary hearing was held for this RVR. At the hearing, Plaintiff

4 was able to ask questions and present evidence, including staff member Garcia and inmate Gray’s

5 answers to his questions. Dkt. No. 57-2 at 49-50. The senior hearing officer and factfinder, R.

6 Downey, reviewed the applicable documents, including questions submitted by Plaintiff. Downey

7 found Plaintiff guilty of battery on a non-prisoner, stating that the charge was supported by

8 defendant Marsical’s rules violation report, defendant Ponce’s incident narrative, defendant

9 Hogeland’s incident narrative, and the photographic evidence of injuries sustained by staff. Dkt.

10 No. 57-2 at 49-50; Dkt. No. 57-1 (“Downey Decl.”), ¶ 2. As a result of the guilty finding, Plaintiff

11 was assessed a credit loss of 150 days, and lost the following privileges for 90 days: canteen,

12 phone, yard recreation, dayroom, package, and group privileges. Dkt. No. 57-2 at 50-51.

13 DISCUSSION

14 In the operative complaint, Plaintiff alleges that Defendants’ use of force on April 2, 2017

15 constituted excessive force in violation of the Eighth Amendment because he was restrained and

16 not resisting, and that Defendants violated his due process rights when they falsely claimed that he

17 had assaulted peace officers during the April 2, 2017 incident. See generally Dkt. Nos. 22, 26.

18 Defendants argue that they are entitled to summary judgment because Plaintiff was

19 combative and resistive on April 2, 2017 and they used reasonable force to subdue him; because

20 false charges, without more, do not violate an inmate’s due process rights; because a temporary

21 loss of privileges does not implicate a liberty interest; and because Plaintiff received all the

22 process that he was due. In the alternative, Defendants argue that they are entitled to qualified

23 immunity because they used force in good faith to subdue a combative inmate to maintain safety

24 and security; and because there is no evidence that Plaintiff was not afforded due process during

25 his rules violation hearing or that a false accusation violates an inmate’s due process rights. See

26 generally Dkt. Nos. 57, 64.

27 In his opposition, Plaintiff states that his trial, conviction, and sentence were unfair; that he

1 of parole” is being used to bias the court. Dkt. No. 60 at 5. He further alleges that Defendants’

2 version of the events on April 2, 2017 is a deceptive lie and that Defendants beat him in a hate-

3 filled racist rage. Dkt. No. 60 at 5-6.2

4 I. Motion to Seal

5 Defendants have filed a motion to seal Dkt. No. 65-3, which is an April 15, 2017,

6 confidential supplement to Plaintiff’s Grievance No. SVSP-L-17-01800. Defendants allege that

7 Dkt. No. 65-3 contains sensitive and confidential information that, if revealed to the public or

8 Plaintiff, would create a risk of safety to the prison, staff, or inmates by revealing the prison’s

9 investigatory methods and findings, identifying sources, and creating a risk to the safety of those

10 who cooperated with the prison during its investigation. Defendants request that the Court seal

11 Dkt No. 65-3 and review it in camera for its support of their reply brief. Dkt. No. 65.

12 The Court has reviewed Dkt. No. 65-4 and considered the accompanying declaration of

13 SVSP Litigation Coordinator G. Lopez. The Court finds that Defendants have demonstrated that

14 the confidential information in the documents, if disclosed, would create a risk to the safety of the

15 prison, staff, or inmates. Good cause appearing, Defendants’ motion to file Dkt. No. 65-3 under

16 seal is GRANTED. See, e.g., Ponte v. Real, 471 U.S. 491, 499 (1985) (prison security is valid

17 reason to conduct in camera review of confidential prison documents). Dkt. No. 65-3 shall remain

18 under seal until the conclusion of this case and any appellate proceedings. If counsel for

19 Defendants does not request that the documents be returned following the conclusion of this case

20 and any appellate proceedings, the documents will be destroyed in conformance with the normal

21

22

2 The legal claims in this action are whether Defendants used excessive force on April 2, 2017, in

B-Facility gym, and whether Defendants falsely accused Plaintiff of assaulting a peace officer

23

with respect to the events in the gym. Outside of the allegations described above, Plaintiff’s

opposition makes additional allegations that are unrelated to, or do not directly bear upon, the

24

legal claims raised in this action, such as Plaintiff is a patriot; Plaintiff was the target of various

prosecutors and police officers who expected him to be full of black rage, called him a snitch,

25

solicited persons to kidnap his children, and threatened his grandmother with death; subsequent to

these events, Plaintiff suffered retaliation following the false allegations; defendant Marsical has

26

sexually assaulted and harassed other inmates; defendant Marsical has a history of animosity

towards Plaintiff; and former defendant Singson is a rule-follower. See generally Dkt. No. 60.

27

These allegations are not directly related to the events in the gym on April 2, 2017, or the

1 records destruction policy of the United States Courts.

2 II. Summary Judgment Standard

3 Summary judgment is proper where the pleadings, discovery and affidavits show there is

4 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

5 law.” See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the

6 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material

7 fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

8 nonmoving party. See id.

9 A court shall grant summary judgment “against a party who fails to make a showing

10 sufficient to establish the existence of an element essential to that party’s case, and on which that

11 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an

12 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

13 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial

14 burden of identifying those portions of the record that demonstrate the absence of a genuine issue

15 of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings

16 and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

17 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324

18 (citing Fed. R. Civ. P. 56(e)).

19 The court’s function on a summary judgment motion is not to make credibility

20 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W.

21 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must

22 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the

23 facts must be viewed in a light most favorable to the nonmoving party. See id. at 631. If the

24 evidence produced by the moving party conflicts with evidence produced by the nonmoving party,

25 the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v.

26 Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

27 //

1 III. Excessive Force Claim

2 A. Legal Standard

3 The treatment a convicted prisoner receives in prison and the conditions under which he is

4 confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25,

5 31 (1993). “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes

6 cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S.

7 312, 319 (1986) (omission in original) (internal quotation marks and citation omitted). Whenever

8 prison officials stand accused of using excessive force in violation of the Eighth Amendment, the

9 deliberate indifference standard generally applied to Eighth Amendment claims is inappropriate

10 and the core judicial inquiry is whether force was applied in a good-faith effort to maintain or

11 restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S.

12 1, 6-7; Whitley, 475 U.S. at 320-21; Jeffers v. Gomez, 267 F.3d 895, 912-13 (9th Cir. 2001)

13 (applying “malicious and sadistic” standard to claim that prison guards used excessive force when

14 attempting to quell prison riot, but applying “deliberate indifference” standard to claim that guards

15 failed to act on rumors of violence to prevent riot). In determining whether the use of force was

16 for the purpose of maintaining or restoring discipline, or for the malicious and sadistic purpose of

17 causing harm, a court may evaluate the need for application of force, the relationship between that

18 need and the amount of force used, the extent of any injury inflicted, the threat reasonably

19 perceived by the responsible officials, and any efforts made to temper the severity of a forceful

20 response. Hudson, 503 U.S. at 7; see also Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979)

21 (guards may use force only in proportion to need in each situation).

22 B. Analysis

23 In the operative complaint, Plaintiff alleges that Defendants’ use of force on April 2, 2017

24 constituted excessive force in violation of the Eighth Amendment because he was restrained and

25 not resisting. See generally Dkt. Nos. 22, 26. Defendants argue that they are entitled to summary

26 judgment on the excessive force claim because Plaintiff was combative and resistive and they used

27 only reasonable force to subdue him. See generally Dkt. Nos. 57, 64. In his opposition, Plaintiff

1 inmate Gray’s answers to the investigative employee’s questions indicating that inmate Gray never

2 saw Plaintiff resist; elbow, kick, or jump kick any correctional officer; be argumentative or

3 combative; or struggle, kick, or curse. Dkt. No. 60 at 17-18. Defendants argue that inmate Gray’s

4 answers are not credible because of information contained in the April 15, 2017, confidential

5 supplement to Plaintiff’s Grievance No. SVSP-L-17-01800. The Court has reviewed in camera

6 the April 15, 2017, confidential supplement. The information in this supplement contradicts

7 inmate Gray’s answers to the investigative employee, but this does not demonstrate the absence of

8 a genuine issue of material fact. Rather, the fact that the April 15, 2017 confidential supplement

9 contradicts inmate Gray’s answers to the investigative employee indicates that there remains a

10 triable issue of fact as to whether, as Plaintiff alleges and inmate Gray claims in his answers to the

11 investigative employee, Plaintiff was restrained and non-resistant when Defendants used force on

12 him, or, as Defendants allege, Plaintiff was combative and resistant and kicking Defendants,

13 thereby making the force used by Defendants reasonable for the purpose of maintaining and

14 restoring discipline. If Plaintiff was restrained and compliant, a reasonable jury could find that the

15 use of force described by Defendants was malicious and sadistic, and not a good-faith effort to

16 maintain or restore discipline. Whether Defendants’ use of force violated the Eighth Amendment

17 turns on whether the Court finds Plaintiff’s version of events more credible or find Defendants’

18 version of events more credible. Viewing the record in the light most favorable to the Plaintiff and

19 refraining from making credibility determinations, the Court finds that there is a triable issue of

20 material fact as to whether Defendants’ use of force violated the Eighth Amendment. The Court

21 DENIES summary judgment with respect to Plaintiff’s excessive force claim.

22 IV. Due Process Claim

23 Plaintiff alleges that Defendants violated his due process rights when they falsely claimed

24 that he assaulted peace officers during the April 2, 2017 incident. See generally Dkt. Nos. 22, 26.

25 Defendants argue that they are entitled to summary judgment because false charges, without more,

26 do not violate an inmate’s due process rights; because a liberty interest is not implicated by the

27 temporary loss of privileges or by a life-without-parole inmate’s loss of good-time credits; and

1 only relevant argument in Plaintiff’s opposition regarding his due process claim is that the

2 statement that he has been sentenced to life without parole is intended to bias the court because he

3 has been unfairly convicted and sentenced. See Dkt. No. 60. However, no court has overturned

4 Plaintiff’s conviction or sentence. It is undisputed that Plaintiff is sentenced to a term of life

5 without the possibility of parole, regardless of whether Plaintiff believes his sentence to be

6 legitimate.

7 The Due Process Clause of the Fourteenth Amendment protects individuals against

8 governmental deprivations of “life, liberty or property,” as those words have been interpreted and

9 given meaning over the life of our republic, without due process of law. Board of Regents v. Roth,

10 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995). Interests that

11 are procedurally protected by the Due Process Clause may arise from two sources – the Due

12 Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976).

13 In the prison context, these interests are generally ones pertaining to liberty. Changes in

14 conditions so severe as to affect the sentence imposed in an unexpected manner implicate the Due

15 Process Clause itself, whether or not they are authorized by state law. See Sandin v. Conner, 515

16 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital),

17 and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of

18 psychotropic drugs)). A state may not impose such changes without complying with minimum

19 requirements of procedural due process. See id. at 484.

20 Deprivations that are authorized by state law and are less severe or more closely related to

21 the expected terms of confinement may also amount to deprivations of a procedurally protected

22 liberty interest, provided that (1) state statutes or regulations narrowly restrict the power of prison

23 officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the

24 liberty in question is one of “real substance.” Sandin, 515 U.S. at 477-87. Generally, “real

25 substance” will be limited to freedom from (1) a restraint that imposes “atypical and significant

26 hardship on the inmate in relation to the ordinary incidents of prison life,” id. at 484, or (2) state

27 action that “will inevitably affect the duration of [a] sentence,” id. at 487.

1 whether the alleged deprivation is one so severe that it implicates the Due Process Clause itself or

2 one less severe that implicates an interest created by state statute or regulation. If it implicates

3 neither, no procedural due process claim is stated.

4 The Ninth Circuit has not directly addressed in a published opinion whether being falsely

5 or wrongly accused of conduct violates an inmate’s federal due process rights. Other circuits,

6 however, have held that, generally speaking, allegations of a fabricated charge, without more, fail

7 to state a Section 1983 claim. See, e.g., Freeman v. Rideout, 808 F.2d 949, 951, 953 (2d Cir.

8 1986); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Hanrahan v. Lane, 747 F.2d 1137,

9 1140–41 (7th Cir. 1984).

10 Plaintiff’s false accusation allegation fails to state a cognizable due process claim because

11 the temporary loss of privileges does not amount to the atypical and significant hardship that

12 Sandin requires. See King v. Jauregui, No. 218CV09649DOCGJS, 2019 WL 6312574, at *5

13 (C.D. Cal. Oct. 4, 2019), report and recommendation adopted, No. 2:18-CV-09649-DOC (GJS),

14 2019 WL 6310266 (C.D. Cal. Nov. 22, 2019) (“courts [in the Ninth Circuit] have declined to find

15 that [the] loss [of non-credits privileges, such as canteen, dayroom, yard, and telephone]

16 constitutes atypical and significant hardships in relation to the ordinary incidents of prison life

17 such that prisoner have constitutionally-protected liberty interests in these types of privileges”)

18 (collecting cases). Credit loss by an inmate serving a life term without the possibility of parole

19 also does not constitute an atypical and significant hardship within the meaning of Sandin. See

20 Gibbs v. Sanchez, No. CV 16-9013-RGK (PLA), 2019 WL 3059579, at *6 (C.D. Cal. Apr. 26,

21 2019), report and recommendation adopted, No. CV 16-9013-RGK (PLA), 2019 WL 4266518

22 (C.D. Cal. June 21, 2019) (“when confronted with a due process claim arising from the loss of

23 good time credits asserted by a prisoner serving a life sentence, courts, following Sandin, routinely

24 find that the prisoner has no liberty interest in the loss of credits”) (collecting cases). Nor does

25 credit loss by an inmate serving a life term without the possibility of parole not affect the duration

26 of that inmate’s sentence.

27 Even if Plaintiff had a liberty interest in being free from false accusation of a disciplinary

1 the minimum procedural protections required by the Supreme Court for prison disciplinary

2 proceedings as set forth in Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and Superintendent v.

3 Hill, 472 U.S. 445, 455 (1985). The only procedural protections required in a prison disciplinary

4 proceeding are written notice, time to prepare for the hearing, a written statement of decision,

5 allowance of witnesses and documentary evidence when not unduly hazardous, aid to the accused

6 where the inmate is illiterate or the issues are complex, some evidence to support the decision, and

7 some indica of reliability as to the information forming the basis for prison disciplinary actions if

8 the information is received from a confidential informant. See Wolff, 418 U.S. at 564-67; Hill, 472

9 U.S. at 454; Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). It is undisputed that Plaintiff

10 received these procedural protections.

11 As a matter of law, viewing the record in the light most favorable to Plaintiff, Plaintiff’s

12 allegations fail to state a cognizable due process claim. The Court GRANTS Defendants’ motion

13 for summary judgment with respect to Plaintiff’s due process claim.

14 V. Qualified Immunity

15 Qualified immunity is an entitlement, provided to government officials in the exercise of

16 their duties, not to stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194,

17 200 (2001). The doctrine of qualified immunity attempts to balance two important and sometimes

18 competing interests—“the need to hold public officials accountable when they exercise power

19 irresponsibly and the need to shield officials from harassment, distraction, and liability when they

20 perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

21 quotation marks and citation omitted). The doctrine thus intends to take into account the real-

22 world demands on officials in order to allow them to act “‘swiftly and firmly’” in situations where

23 the rules governing their actions are often “‘voluminous, ambiguous, and contradictory.’” Mueller

24 v. Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citing Davis v. Scherer, 468 U.S. 183, 196 (1984)).

25 “The purpose of this doctrine is to recognize that holding officials liable for reasonable mistakes

26 might unnecessarily paralyze their ability to make difficult decisions in challenging situations,

27 thus disrupting the effective performance of their public duties.” Id. To determine whether an

1 violated a constitutional right, and (2) that right was clearly established at the time of the incident.

2 Pearson, 555 U.S. at 232. Courts are not required to address the two qualified immunity issues in

3 any particular order, and instead may “exercise their sound discretion in deciding which of the two

4 prongs of the qualified immunity analysis should be addressed first in light of the circumstances in

5 the particular case at hand.” Id. at 236.

6 With respect to Plaintiff’s excessive force claim, as discussed above, making all reasonable

7 inferences in Plaintiff’s favor as required at this stage, there is a triable issue of fact as to whether

8 a constitutional violation occurred. It has long been established that prison officials violate the

9 Eighth Amendment when they use force maliciously and sadistically for the purpose of causing

10 harm. Whitley, 475 U.S. at 320–21; see also Drummond ex rel. Drummond v. City of Anaheim,

11 343 F.3d 1052, 1061 (9th Cir. 2003) (denying qualified immunity because it is clearly established

12 that crushing an arrestee on ground despite his repeated cries for air and despite fact that his hands

13 were cuffed behind his back and he was offering no resistance constituted use of excessive force).

14 If Plaintiff’s version of events is credited – that he was restrained and not resisting or combative –

15 a reasonable jury could find that Defendants’ use of force on April 2, 2017 was malicious and

16 sadistic and therefore violated the Eighth Amendment. Accordingly, Defendants are not entitled

17 to qualified immunity on their excessive force claim based on the record currently before the

18 Court. Any such entitlement will depend on the resolution of disputed issues of fact. See Tolan v.

19 Cotton, 572 U.S. 660, 657 (2014) (in determining whether defendant is entitled to qualified

20 immunity, court must resolve factual disputes in favor of non-moving party).

21 With respect to the due process claim, because there was no violation of Plaintiff’s due

22 process rights, there is no necessity for further inquiries concerning qualified immunity. See

23 County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to resolving

24 cases in which the defense of qualified immunity is raised is to determine first whether the

25 plaintiff has alleged the deprivation of a constitutional right at all.”).

26 CONCLUSION

27 For the reasons set forth above, the Court orders as follows.

1 shall remain under seal until the conclusion of this case and any appellate proceedings. If counsel

2 || for Defendants does not request that the documents be returned following the conclusion of this

3 case and any appellate proceedings, the documents will be destroyed in conformance with the

4 || normal records destruction policy of the United States Courts.

5 2. The Court GRANTS IN PART AND DENIES IN PART Defendants’ motion for

6 || summary judgment. The Court GRANTS Defendants’ motion for summary judgment with respect

7 || to Plaintiff's due process claim. The Court DENIES Defendants’ motion for summary judgment

8 with respect to Plaintiff’s excessive force claim.

9 3. The case is hereby REFERRED to Magistrate Judge Robert IlIman for settlement

10 || proceedings pursuant to the Pro Se Prisoner Mediation Program to address the remaining Eighth

11 Amendment excessive force claim: whether Defendants’ use of force on April 2, 2017 when

12 || Plaintiff was in the gym violated the Eighth Amendment prohibition on excessive force. Such

5 13 proceedings shall take place within 120 days of the date this order is filed, or as soon thereafter as

14 || Magistrate Judge IIlman’s calendar will permit. Magistrate Judge IlIman shall coordinate a place,

3 15 time and date for one or more settlement conferences with all interested parties and/or their

16 || representatives and, within fifteen days of the conclusion of all settlement proceedings, shall file

3 17 with the Court a report thereon. The Clerk is directed to serve Magistrate Judge IIIman with a

18 copy of this order and to notify Magistrate Judge [Iman that a copy of the Court file can be

19 || retrieved from the Court’s electronic filing database.

20 4. In view of the referral, further proceedings in this case are hereby STAYED. The

21 Clerk shall ADMINISTRATIVELY CLOSE this case until further order of the Court. Ifthe case

22 || is not settled, the Court will enter a new scheduling order for further proceedings.

23 This order terminates Dkt. Nos. 57, 65.

24 IT IS SO ORDERED.

25 || Dated: 9/29/2022

26 Atmpurrl 5 Sbl_|p.

7 HAYWOOD S. GILLIAM, JR.

United States District Judge

28