Byam v. Cain

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANTHONY JONATHAN BYAM, Case No. 2:18-cv-1030-SI

Plaintiff, ORDER

v.

SRCI SUPERINTENDANT B. CAIN;

C/O BARBA; C/O MARTINEZ;

LT. WILLIAM KING; HEARINGS

OFFICER CAPPS; C/O M. MARINES; and

OTHER UNKNOWN EMPLOYEES,

Defendants.

Michael H. Simon, District Judge.

Plaintiff Anthony J. Byam (“Byam”), representing himself, brings this action under 42

U.S.C. § 1983, alleging that Defendants—all employees of the Oregon Department of

Corrections (“ODOC”)—violated Byam’s constitutional rights. Defendants have moved for

summary judgment against all claims. For the reasons that follow, Defendants’ motion is granted

in part and denied in part.

BACKGROUND

As his first claim, Byam alleges that on November 10, 2017, an ODOC extraction team

used excessive force in removing him from his cell. Byam had covered his cell window with

paper, seeking to speak with a high-ranking officer after Defendant Barba allegedly refused to

give Byam dinner. Byam states in a sworn declaration that when the ODOC officers came to

extract him from his cell, he did not resist and instead placed his hands on his head, faced the

back wall of his cell, and began to kneel, but that officers “tased [him], tackled [him] to the

ground and repetitively smashed [his] head in the cement causing multiple contusions and

lacerations.” ECF 42. Byam also submitted photographs of his purported injuries, and the Court

has reviewed video footage of Byam being extracted from his cell. Byam adds that just before he

was extracted, officers played musical recordings over the intercom, including “Eye of the

Tiger,” which is the theme-song from the movie Rocky. Byam asserts that the ODOC officers did

this to “goad” Byam into acting impulsively.

As his second claim, Byam alleges that Defendant Capps denied Byam his due process

rights by denying Byam’s requests for an investigation and to call witnesses at Byam’s

disciplinary hearing related to the cell extraction. As his third claim, Byam alleges that

Defendant Barba escorted Byam to his cell while Byam was only wearing his underwear. As a

remedy for these three claims, Byam seeks “release, monetary judgment, and actions taken to

prevent similar future events.”1

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

1 Defendants argue that the Court should dismiss Byam’s claims for injunctive relief

because the relief that Byam requested is impermissible under the Prison Litigation Reform Act

(“PLRA”). Under the PLRA, courts “shall not grant or approve any prospective relief unless the

court finds that such relief is narrowly drawn . . .” 18 U.S.C. § 3626(a)(1)(A). Defendants argue

that Byam’s claim for “release” and “actions taken to prevent similar events” do not meet this

requirement. The Court agrees and dismisses Byam’s claims for injunctive relief.

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “Unless it is

absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice

of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”

Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)

(quoting Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under

Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” This standard “does

not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555).

DISCUSSION

A. Claim One: Excessive Use of Force

Defendants argue that there is no genuine issue of material fact as to whether any

member of the cell extraction team used excessive force against Byam and that Defendant

Martinez lacks sufficient personal involvement in the alleged incident. Inmates maintain an

Eighth Amendment right to be free of cruel and unusual punishment while in prison, but “force

does not amount to a constitutional violation in this respect if it is applied in a good faith effort to

restore discipline and order not ‘maliciously and sadistically for the very purpose of causing

harm.’” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting Whitley v. Albers, 475

U.S. 312, 320-21 (1986)). The standard has both objective and subjective elements. Objectively,

the alleged wrongdoing must be “harmful enough to establish a constitutional violation.” Hudson

v. McMilian, 503 U.S. 1, 8 (1992). Subjectively, prison officials must act “with a sufficiently

culpable state of mind” id., but an “express intent to inflict unnecessary pain is not required.”

Whitley, 475 U.S. at 319 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In order to

determine whether a particular use of force evinces the wanton infliction of pain, “we consider

the objective need for force, the relationship between any such need and the amount of force

actually used, the threat reasonably perceived by the correctional officer, whether the officer

took efforts to temper the severity of his response, and the extent of the inmate’s injury.”

Marquez v. Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003).

The Court finds that there is a genuine issue of material fact as to whether the force used

by members of the ODOC extraction team against Byam was applied maliciously and

sadistically to cause harm rather than in a good-faith effort to maintain and restore discipline.

The Court has carefully reviewed the video evidence of the extraction submitted by Defendants,

and finds there are also genuine issues of material fact as to whether there was an objective need

for force, the relationship between any such need and the amount of force actually used, the

threat reasonably perceived by the correctional officers, whether the officers took efforts to

temper the severity of the response, and the extent of the Byam’s injury. Marquez, 322 F.3d

at 692. At approximately minute 2:16 of the video submitted by Defendants, the extraction team

begins to open Byam’s cell door. Byam can be seen immediately lying down on the ground, face

down, with his feet towards the door. After Byam lies down, a member of the extraction team

shoots Byam with a taser.2 Byam can be heard screaming, and Sergeant King asserts in his

declaration that Officer Lindberg then deployed his electronic shield against Byam “momentarily

to gain compliance.” Sergeant King asserts in his declaration that Officer Houston then deployed

a secondary taser against Byam. At minute 3:35, the extraction team can be seen escorting Byam

out of his cell after they had fully restrained him. At minute 4:20-40, Byam can be heard saying

“I just wanted to talk to somebody. . . . I think you broke my nose.” At minute 7:10, visible

bruises can be seen on Byam’s face.

The Court finds that this evidence is sufficient to show a genuine dispute of material fact

as to the objective need for force, the relationship between any such need and the amount of

force actually used, the threat reasonably perceived by any correctional officer, whether any

officer took efforts to temper the severity of his response, and the extent of Byam’s injury. The

video evidence indicates that Byam was lying face down before any force was used. Byam’s

injuries are visible on video. The Court must view the evidence in the light most favorable to the

non-movant and draw all reasonable inferences in the non-movant’s favor. Viewed in that light,

there is a genuine dispute as to whether the force used amounts to a constitutional violation.

2 Sergeant King asserts in his declaration that the first taser was deployed by Sergeant

Kautz. ECF 34.

Nor are Defendants entitled to qualified immunity. Ninth Circuit precedent clearly

establishes that using a taser in dart mode against an individual who does not pose an “immediate

threat to the safety of the officers or others” is a constitutional violation. Bryan v. MacPherson,

630 F.3d 805, 827 (9th Cir. 2010). The Court in Bryan also noted that the Defendant in that case,

like Byam here, “was not even facing [the officer who deployed the taser] when he was shot.” Id.

The Ninth Circuit has also established that there is a constitutional violation when a taser is used

in drive-stun mode rather than dart mode. See Mattos v. Agarano, 661 F.3d 433, 443 (9th

Cir. 2011). In Mattos, the Court noted that “[a]t most, the officers may have found [the tased

individual] uncooperative and her agitated behavior to be potentially threatening” and that such

circumstances were not appropriate for the use of the taser. Id. at 444. The Court noted the

“overwhelmingly salient factor” that the individual was tased three times over the course of less

than one minute, and held that “tasings in such rapid succession provided no time for [the tased

individual] to recover from the extreme pain she experienced, gather herself, and reconsider her

refusal to comply.” Id. at 445.

In this case, Byam was tased twice within approximately one minute, an electronic shield

was deployed against him, and Byam declares that his face was “smashed into the concrete.”

This level of force, used while Byam was lying face down, and Byam’s declaration that ODOC

played music in an attempt to provoke him also raises a genuine dispute over whether such force

was employed maliciously. Both Mattos and Bryan held that there were constitutional violations

in comparable circumstances when only a taser was deployed, and therefore the members of the

extraction team are not entitled to qualified immunity.

Defendants also contend that the only defendant that Byam alleged personally

participated in the cell extraction was Martinez, and that Martinez was not working at SRCI on

the day of Byam’s extraction. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

(“Liability under § 1983 must be based on the personal involvement of the defendant.”).

Defendants acknowledge in their reply, however, that Byam misspelled the name of the proper

Defendant in his complaint, as indicated by the fact that Byam asserts in his declaration that it

was in fact “C/O Marines” that used excessive force against him in the extraction. A court must

liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any

reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court therefore

construes Byam’s declaration as a motion for leave to replace Defendant Martinez with

Defendant M. Marines and grants that motion. Byam is also granted leave to substitute any of the

officers who were part of the extraction team (such as Sergeant Kautz, Officer Lindberg, or

Officer Houston) with the “Other Unknown Employee” currently listed in the case caption, if

Byam wishes to do so.

B. Claim Two: Due Process

Byam alleges that Defendant Capps, a Hearings Officer, violated Byam’s due process

rights by denying Byam’s request for an investigation and to call witnesses at Byam’s

disciplinary hearing relating to the cell extraction. Byam was charged with ODOC Rule 2.10

(Disrespect I) and Rule 4.01 (Disobedience of an Order I), and Byam formally denied both

charges. On November 17, 2017, Capps conducted Byam’s disciplinary review hearing. Byam

admitted to his failure to comply with direct order. ECF 38. (“Uh, what do you mean, ah, taking

the articles down? I still did not comply, yes.”).

Capps then denied Byam’s request for inmate witnesses, stating:

MR CAPPS: . . . I’m not going to grant your request for witnesses

because your own explanation tells me that you didn’t comply with

orders, but you had a reason, that was your reason, you gave a

reason why you chose not to, but having those witnesses tell me,

they’re not going to be able to provide a defense.

ECF 38. At the conclusion of the hearing, Capps found Byam in violation of both Rule 2.10

(Disrespect I) and Rule 4.01 (Disobedience of an Order I) violation but sanctioned Byam only

for the Rule 4.01 (Disobedience of an Order) violation.

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To comply with

due process requirements during inmate disciplinary proceedings, prison officials must provide

an inmate with: (1) written notice of the charges; (2) some time following the notice to prepare a

defense; (3) a written decision by the fact-finder; (4) the opportunity to call witnesses and

present documentary evidence in his defense when consistent with institutional safety and

correctional goals; and (5) assistance from staff or other inmates if the inmate is illiterate or if the

case is extremely complex. Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974).

An inmate has a right to call witnesses at a disciplinary hearing to “marshal the facts and

present a defense.” Wolff, 418 U.S. at 564. But “there is no right to call witnesses whose

testimony would be irrelevant, repetitive, or unnecessary.” Piggie v. Cotton, 344 F.3d 674, 677

(9th Cir. 2003). The inmate’s interest in presenting witnesses must be weighed against “the needs

of the prison, and some amount of flexibility and accommodation is required.” Wollf, 418 U.S.

at 566. The Court finds that there is uncontroverted evidence that Byam admitted his failure to

comply with a direct order, and this was the one violation for which Byam was sanctioned.

Calling witnesses would have been irrelevant or unnecessary, as Capps expressly informed

Byam. There was, therefore, no violation of Byam’s due process rights, and Defendants’ motion

for summary judgment is granted with respect to Byam’s second claim.

C. Claim Three: Substantive Due Process and Cruel and Unusual Punishment

Byam’s third claim is that Officer Barba violated Byam’s substantive due process rights

under the Fifth Amendment and subjected Byam to cruel and unusual punishment in violation of

the Eighth Amendment. Byam alleges that after Officer Barba conducted a routine strip search

for contraband, Barba escorted Byam from the shower back to Byam’s cell while Byam was only

wearing his underwear.

The Supreme Court holds that “[w]here a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular sort of government behavior, ‘that

Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for

analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989)). The Eighth Amendment prohibits “cruel and unusual

punishments,” and, therefore, “places restraints on prison officials.” Farmer v. Brennan, 511

U.S. 825, 832 (1994). Thus, Byam’s third claim arises under the Eighth Amendment.

To establish an Eighth Amendment violation under Section 1983, a prisoner must satisfy

“both the objective and subjective components of a two-part test.” Toguchi v. Chung, 391 F.3d

1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). First,

the plaintiff must show that the jail official deprived him of the “minimal civilized measure of

life’s necessities.” Id. (quotations and citation omitted). Second, he must demonstrate that the jail

official “acted with deliberate indifference in doing so.” Id. (quotations and citation omitted).

Defendants acknowledge that prisoners have “a right to privacy in their naked body.”

Ioane v. Hodges, 903 F.3d 929, 934 (9th Cir. 2018). Defendants argue, however, that they are

entitled to qualified immunity because this rule has never been extended to staff or inmates

viewing male prisoners in their underwear. The doctrine of “[q]ualified immunity ‘protects

government officials from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Sjurset v. Button, 810 F.3d 609, 614 (9th Cir. 2015). In determining whether qualified

immunity applies, courts “must determine whether: (1) the facts adduced constitute the violation

of a constitutional right; and (2) the constitutional right was clearly established at the time of the

alleged violation.” Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016).

In deciding if a constitutional right was clearly established “at the relevant time, the key

question is whether the defendants should have known that their specific actions were

unconstitutional given the specific facts under review.” Hamby v. Hammond, 821 F.3d 1085,

1090 (9th Cir. 2016). In other words, the “right must be sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Id.

The Court has found no precedent that clearly establishes that Barba should have known

that the specific action of escorting a male inmate from the showers to his cell while the inmate

wears only underwear is a constitutional violation. Officer Barba is therefore entitled to qualified

immunity from Byam’s third claim.

CONCLUSION

Defendants’ motion for summary judgment (ECF 33) is GRANTED with respect to

Byam’s first claim to the extent that Byam seeks injunctive relief and with respect to Byam’s

second and third claims in full. Defendants’ motion for summary judgment is DENIED with

respect to Byam’s first claim to the extent that Byam seeks money damages.

IT IS SO ORDERED.

DATED this 12th day of August, 2019.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge