where nonmoving party's direct evidence raises 9 genuine issues of fact but is called into question by other unsworn testimony, district court may 10 not grant summary judgment to moving party on ground that direct evidence is unbelievable
How later courts described this case
- where nonmoving party's direct evidence raises 9 genuine issues of fact but is called into question by other unsworn testimony, district court may 10 not grant summary judgment to moving party on ground that direct evidence is unbelievable
- finding that kicking the 8 genitals of a prisoner who was on the ground and in handcuffs during an interrogation was “near 9 the top of the list” of acts taken with cruel and sadistic purpose to harm another
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JIMMY LEE HOUSTON, Case No. 22-cv-02475-JSW
8 Plaintiff, ORDER DENYING MOTION FOR
SUMMARY JUDGMENT; ON
9 v. PENDING MOTIONS; REFERRING
CASE TO MEDIATION
10 S. GUTIERREZ, et al.,
Re: Dkt. Nos. 26-29
Defendants.
11
12 INTRODUCTION
13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42
14 U.S.C. § 1983 against three officers at Salinas Valley State Prison (“SVSP”): S. Gutierrez, M.
15 Rangel, and L. Maciel for using excessive force against him. The Court found Plaintiff’s
16 allegations, when liberally construed, stated cognizable claims against Defendants for violating his
17 Eighth Amendment rights. Defendants’ motion for judgment on the pleadings was granted to the
18 extent Plaintiff sued Defendants in their official capacities; the motion was otherwise denied.
19 Defendants filed a motion for summary judgment. Plaintiff opposed the motion,1 and Defendants
20 replied. For the reasons discussed below, the motion for summary judgment is GRANTED, and
21 this case is REFERRED to Magistrate Judge Illman to mediation proceedings. The other pending
22 motions are addressed below.
23 BACKGROUND
24 Except where noted, the following facts are not in dispute.
25 On November 11, 2018, SVSP officials conducted prison-wide searches of inmates and
26 their cells. Plaintiff refused to leave his cell for a search despite orders to do so. Defendants
27
1 Rangel, Gutierrez, and Maciel arrived at Plaintiff’s cell and spoke with Plaintiff. Plaintiff alleges
2 he demanded to see the “Watch Commander,” Lieutenant Thomas (who is not a defendant);
3 Defendants deny this. Plaintiff refused to come out or present his hands for handcuffing, and he
4 jammed the door with a bedsheet so it would not open automatically. Defendant Gutierrez forced
5 open the door manually. Plaintiff complied with the order to go to the back of the cell. An
6 altercation between Plaintiff and Defendants ensued. The parties present different accounts of the
7 altercation.
8 According to Plaintiff, once he complied with order to go to back of cell, Defendants
9 Maciel and Gutierrez emptied two cannisters of pepper-spray at him. Then, he complied with
10 orders to walk backwards to the door of the cell where he was hit in the back of the head with a
11 baton. This made him fall to the knees. Gutierrez then dragged him using a choke hold, sat on his
12 back, and punched him in the back of his head. While he was on the ground and handcuffed,
13 Maciel kicked and kneed him in the right abdomen. Defendant Rangel held his legs while the
14 other Defendants and other officers struck him. At some point, Plaintiff lost consciousness, but
15 was revived when an unnamed officer kicked him so hard that he came to, urinated blood, and
16 defecated.
17 Defendants present a materially different account of their altercation once Plaintiff went to
18 the back of his cell. According to Defendants, before being pepper-sprayed, Plaintiff put his hands
19 behind his back and refused to show both of them when ordered to do so. Plaintiff also refused
20 orders to get on the ground. Plaintiff threw an unknown liquid in the face of Gutierrez and
21 Rangel. Gutierrez and Rangel pepper-sprayed Plaintiff, but Plaintiff threw a shampoo bottle at
22 Defendants that was filled with liquid and material he scooped out of the toilet. Plaintiff refused
23 orders to go to the ground and rushed towards the cell door, where he threw punches at Maciel.
24 Defendants tried to subdue Plaintiff by wrapping their arms around him, but Plaintiff continued to
25 twist his torso and threw his elbows backward to try to hit Gutierrez. Maciel, Gutierrez, and
26 Plaintiff went to the ground, where Plaintiff tried to hit Gutierrez with his head. A non-defendant
27 officer put his hands on the back of Plaintiff’s head to stop him, and Plaintiff tried spit on him.
1 mechanical restraints.
2 The parties agree that after Plaintiff was restrained, he was taken to a hospital where he
3 was examined, including with CT scans and x-rays, and received treatment. Plaintiff claims he
4 suffered a concussion and a fractured rib, and he continued to urinate blood. Medical records from
5 the day of the incident show Plaintiff suffered abrasions and swelling in his head, abrasions on his
6 face, elbows, and knees, chemical agent injuries on his face and head, and “acute amnesia;” he
7 was diagnosed with a closed head injury, hematuria (blood in his urine), and a kidney injury that
8 was described variously as a “forniceal rupture,” “dilated renal pelvis,” “injury to the renal
9 pelvis,” and “renal pelvis injury with hematuria;” and x-rays and scans showed an “unremarkable
10 CT brain” and “no evidence of acute injury in the chest or abdomen.” (ECF No. 30-1 at 22-29.)
11 Medical records from November 28 and December 4, 2018, showed a fractured rib on his right
12 side. Defendants Gutierrez and Rangel were also examined for blood-borne pathogens, and
13 Gutierrez was diagnosed with a broken hand.
14 DISCUSSION
15 I. Standard of Review
16 Summary judgment is proper where the pleadings, discovery and affidavits show that there
17 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a
18 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of
19 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material
20 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
21 nonmoving party. Id.
22 The moving party for summary judgment bears the initial burden of identifying those
23 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine
24 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving
25 party has met this burden of production, the nonmoving party must go beyond the pleadings and,
26 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for
27 trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material
1 issue of material fact so long as they state facts based on personal knowledge and are not too
2 conclusory.” Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).
3 At summary judgment, the judge must view the evidence in the light most favorable to the
4 nonmoving party: if evidence produced by the moving party conflicts with evidence produced by
5 the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving
6 party with respect to that fact. Tolan v. Cotton, 570 U.S. 650, 656-57 (2014). A court may not
7 disregard direct evidence on the ground that no reasonable jury would believe it. Leslie v. Grupo
8 ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (where nonmoving party's direct evidence raises
9 genuine issues of fact but is called into question by other unsworn testimony, district court may
10 not grant summary judgment to moving party on ground that direct evidence is unbelievable).
11 II. Analysis
12 1. Exhaustion
13 Defendants argue Plaintiff did not exhaust his claim that they violated his Eighth
14 Amendment rights by failing to intervene in each other’s use of force because the administrative
15 grievance he exhausted did not mention a failure to intervene.
16 The Prison Litigation Reform Act (“PLRA”), provides “[n]o action shall be brought with
17 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
18 confined in any jail, prison, or other correctional facility until such administrative remedies as are
19 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion means “proper exhaustion, and
20 compliance with prison grievance procedures is all that is required by the PLRA to "properly
21 exhaust." Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail necessary in a
22 grievance to comply with the grievance procedures will vary from system to system and claim to
23 claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper
24 exhaustion. Id. at 218. In California, an inmate is required to identify staff members and the staff
25 members’ involvement in the case, including names, titles, dates, and any other information that
26 could help ascertain their identities. Cal. Code Regs. tit. 15 § 3084.2(a), (a)(3). In general, “a
27 grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.”
1 grievance need not include legal terminology or legal theories unless they are needed to provide
2 notice of the harm being grieved. Id. Nor must a grievance include every fact necessary to prove
3 each element of an eventual legal claim. Id. The purpose of a grievance is to alert the prison to a
4 problem and facilitate its resolution, not to lay groundwork for litigation. Id.
5 To exhaust his Eighth Amendment claim based upon a failure-to-intervene theory, the
6 PLRA did not require Plaintiff to expressly state Defendants failed to intervene in the use of force
7 by each other and other officers. There is no dispute that in his exhausted administrative
8 grievance, Plaintiff stated that all of the Defendants were present when each the force was applied
9 against Plaintiff. The failure to intervene is simply one of the theories upon which Defendants
10 may be held liable under the Eighth Amendment --- the other being their own application of force
11 --- based upon those facts. All that the California regulations require is to identify the Defendants
12 and describe how they were involved, which Plaintiff did. Neither those regulations nor the PLRA
13 required Plaintiff to identify all or any of the theories of liability in the administrative grievance.
14 See id. By alleging Defendants were all present when each other used force, and particularly in
15 the absence of any allegation that they tried to stop each other, the grievance sufficiently put
16 Defendant on notice of the problem, i.e. that officers applied excessive force against him and did
17 so in each other’s presence without anyone intervening. Accordingly, the Court finds that Plaintiff
18 has sufficiently exhausted his Eighth Amendment claim against Defendants, including to the
19 extent such a claim is based upon a failure-to-intervene theory of liability.
20 2. Excessive Force Claim
21 Defendants argue Plaintiff has not created a triable issue with respect to his Eighth
22 Amendment claim of excessive force. The treatment a convicted prisoner receives in prison and
23 the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.
24 Helling v. McKinney, 509 U.S. 25, 31 (1993). Whenever prison officials stand accused of using
25 excessive force in violation of the Eighth Amendment, the core judicial inquiry is whether force
26 was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically
27 to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination, a
1 amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the
2 responsible officials, and any efforts made to temper the severity of a forceful response. Id. at 7;
3 see, e.g., Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013) (reversing district court’s grant
4 of defendants’ motion for summary judgment because plaintiff’s evidence that guards emptied two
5 pepper spray canisters at him when he put his hands on his cell’s food port opening raised a
6 disputed issue of material fact regarding whether he posed a threat that justified defendants using
7 pepper spray); Watts v. McKinney, 394 F.3d 710, 712-13 (9th Cir. 2005) (finding that kicking the
8 genitals of a prisoner who was on the ground and in handcuffs during an interrogation was “near
9 the top of the list” of acts taken with cruel and sadistic purpose to harm another).
10 Viewing the evidence in a light most favorable to Plaintiff, as the Court must do at this
11 stage of the litigation, there is a triable issue as to whether Defendants’ application of force, and/or
12 their failure to intervene in such application of force, was a malicious and sadistic infliction of
13 harm that violated the Eighth Amendment. According to Plaintiff’s sworn account of the facts,
14 which the Court must accept as true and from which the Court must draw all inferences in
15 Plaintiff’s favor, Maciel2 and Gutierrez pepper-sprayed Plaintiff without provocation and after
16 Plaintiff had complied with orders to retreat to the back of his cell. Gutierrez then placed Plaintiff
17 in a choke hold until Plaintiff lost consciousness, sat on his back, and punched him in the back of
18 the head multiple times after Plaintiff had been knocked to the ground, was not resisting, and had
19 been complying with Defendants’ orders. Maciel kicked and kneed Plaintiff while he was on the
20 ground, restrained, and not resisting. Rangel held Plaintiff’s legs while Maciel, Gutierrez, and
21 other unnamed officers kicked, kneed, and struck Plaintiff, even though Plaintiff was in handcuffs
22 and not resisting. The Court may not determine on summary judgment whether this account is
23 credible, as opposed to Defendants’ contradictory account. A rational trier of fact could believe
24 Plaintiff’s version of events, and based upon such events, could determine that by applying this
25 amount of force while Plaintiff was compliant and, later, restrained and/or unconscious,
26
27
2 The Court recognizes that according to Defendants it was Rangel (not Maciel) who pepper-
1 Defendants sadistically and maliciously applied force to cause harm, not in a good faith attempt to
2 restore order.
3 Defendants argue they are entitled to summary judgment because Plaintiff did not comply
4 with their orders and resisted and assaulted them, and they used substantially less force than
5 Plaintiff describes. This argument is based upon their version of the events, which contradicts
6 Plaintiff’s account on the material issues of the amount of force Defendants applied and the
7 amount of resistance Plaintiff offered. A rational fact-finder could believe either Plaintiff’s or
8 Defendants’ version of the facts related to these issues, which means there is triable and material
9 factual dispute precluding the grant of summary judgment on the claim Defendants applied, and/or
10 failed to intervene in the application of, excessive force.
11 Defendants also argue Plaintiff’s account cannot be credited because it is contradicted by
12 the medical records of Plaintiff’s injuries. A significant injury is not a threshold requirement for
13 stating an excessive force claim. Hudson, 503 U.S. at 7. Whether the alleged wrongdoing is
14 objectively harmful enough to establish a constitutional violation is contextual and responsive to
15 contemporary standards of decency. Id. at 8. Contemporary standards of decency are always
16 violated when prison officials maliciously and sadistically use force to cause harm "whether or not
17 significant injury is evident. Otherwise, the Eighth Amendment would permit any physical
18 punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of
19 injury.” Id. at 9. It is true, as Defendants argue, the medical records from the day of the incident
20 show Plaintiff did not suffer a concussion or broken rib. Medical records from 17 and 23 days
21 later show a broken rib, however, which could mean Plaintiff suffered the injury after the
22 altercation with Defendants or the injury was missed when he was initially x-rayed. Regardless,
23 Defendants could have used excessive force even without concussing Plaintiff or breaking his rib.
24 Under Hudson, the issue is how much force Defendants applied, not how seriously they injured
25 Plaintiff. The injuries are only relevant to the extent they corroborate Plaintiff’s account of the
26 force applied, which the medical records from the day of the incident do. These records show
27 substantial injuries to Plaintiff’s kidney, blood in his urine, reports of amnesia, swelling on his
1 are consistent with Plaintiff’s account that Defendants pepper-sprayed him, hit him in the head,
2 choked and dragged him, and kicked and kneed him in his torso, and other officers also struck him
3 and kicked him in the groin. Consequently, the medical records do not preclude, and could even
4 support, a rational finding that Plaintiff’s account of the incident is true.
5 For these reasons, there is a triable issue as to whether Defendants applied excessive force
6 in violation of Plaintiff’s Eighth Amendment rights. Defendants’ qualified immunity argument
7 fails because no reasonable officer could believe that pepper-spraying, choking, dragging,
8 punching, kicking, and kneeing a prisoner, and restraining such prisoner while this force was
9 applied, where the prisoner was compliant, restrained, not resisting, lying face down, and at some
10 point unconscious, all of which the Court must assume for purposes of this summary judgment
11 motion, was lawful under the Eighth Amendment. See Pearson v. Callahan, 555 U.S. 223, 232
12 (2009).
13 CONCLUSION
14 Defendants’ summary judgment motion is DENIED. Defendants’ motion for a stay of
15 discovery is DENIED as moot. Plaintiff’s motion to compel is DENIED without prejudice to
16 refiling following conclusion of the mediation proceedings ordered below and following
17 Plaintiff’s meeting and conferring with defense counsel in accordance with Rule 37(a) of the
18 Federal Rules of Civil Procedure to resolve any outstanding discovery requests. Plaintiff’s request
19 to exceed page limits for his opposition is GRANTED, and his “opposition” to the Rand warning
20 is DENIED.
21 This case is REFRERRED to Magistrate Judge Illman pursuant to the Pro Se Prisoner
22 Mediation Program. The mediation proceedings shall take place within 120 days of the date this
23 order is entered. Magistrate Judge Illman shall coordinate a time and date for a mediation
24 proceeding with all interested parties or their representatives and, within five days after the
25 conclusion of the mediation proceedings, file a report. All mediation proceedings shall be
26 confidential and no statement made therein will be admissible in any proceedings in the case,
27 unless the parties otherwise agree. No part of the mediation proceeding shall be reported, or
1 settlement. All further proceedings in this case except those related to the mediation proceedings,
2 as ordered or permitted by Magistrate Judge Ilman, are STAYED pending completion of the
3 mediation proceedings.
4 The clerk shall send a copy of this order to Magistrate Judge Illman.
5 This order resolves docket numbers 26-29.
6 IT IS SO ORDERED.
7 Dated: December 15, 2023
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