Opinion
No. C 01-3411 SI (pr)
July 29, 2002
JUDGMENT
Summary judgment is entered in favor of defendant and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION
Kenoth Raymond Bishop, formerly an inmate at San Quentin State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. The Court reviewed Bishop's complaint and determined that it appeared to state an Eighth Amendment claim against parole officer Evangelista for using excessive force on Bishop during his arrest for a parole violation. The complaint was ordered served on defendant Evangelista. Defendant has filed a motion for summary judgment, arguing that no genuine issues of material fact exist and that he is entitled to qualified immunity as a matter of law. For the reasons described below, the Court will grant the motion. The Court will also deny several miscellaneous motions filed by Bishop.
BACKGROUND
In his verified complaint, Bishop alleged that he was arrested on a parole violation while he was in the Salinas parole office on February 28, 2001 and was hurt in the process. He alleged that, during his arrest, he offered no resistance and had his arms at his sides when an unidentified parole agent "starts cranking my right wrist toward my back. He cranked it so hard he spranged [sic] my wrist." Compl. at 8. Bishop also alleged that while he was permitting the agents to handcuff him, defendant Jeff Evangelista "cranks my left index finger back so far he fractured it." Id. Bishop stated that when he asked defendant "why he did that," defendant responded, "`Oh stop crying like a baby.'" Id.
In his motion for dismissal/summary judgment, Evangelista described the incident slightly differently. Evangelista stated:
Mr. Bishop did not physically resist the arrest. I handcuffed Mr. Bishop without incident, and brought him into my office while I prepared paperwork for the arrest. While Mr. Bishop was in my office he complained that his shoulders were bothering him — his arms were behind him in handcuffs. I vaguely recall Mr. Bishop telling me that he had a bad shoulder and bad knee from a previous fall in the bathtub, or something to that effect. I do not recall Mr. Bishop mentioning anything about an injured finger.
Evangelista Decl., ¶ 4. A medical intake questionnaire prepared when Bishop was taken to the county jail just hours after his arrest reported that Bishop did not have any visible signs of trauma or wounds and did not indicate that Bishop mentioned any problem with his finger having been hurt, although Bishop complained about several other preexisting health problems. Moon Decl., exhibits thereto. Physically injured arrestees are ordinarily brought to Natividad Hospital at the time of booking, and Bishop was not brought to Natividad Hospital. Evangelista Decl., ¶ 7. Also, Paul Sather, M.D., a radiologist at San Quentin who reviewed a May 25, 2001 x-ray of Bishop's finger, stated:
I do not see any deformity on the x-ray consistent with a prior fracture of the finger. Typically, a prior fracture of a finger causes a deformity in its bony structure. While some fractures will heal completely, some deformity is ordinarily seen on the x-ray. For example, if Mr. Bishop had fractured his left index finger three or six months before the x-ray, I would expect to see some changes in the structure of the finger. I do not see this change on the x-ray.
Sather Decl., ¶¶ 3-4. Although Dr. Sather noted that plaintiff's left index finger "does reflect some mild degeneration," in his medical opinion, "the x-ray of Mr. Bishop's left index finger is not compatible with a prior fracture of that finger." Id. at ¶¶ 5-6.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred in Monterey County, within the Northern District. This court has federal jurisdiction over this action brought under 42 U.S.C. § 1983.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Defendant has moved for summary judgment on the affirmative defense of qualified immunity. Where as here, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") Once the moving party has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party and the inferences must be drawn in the light most favorable to the nonmoving party. See id. at 630-31.
DISCUSSION
The defense of qualified 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In the recent case of Saucier v. Katz, 121 S.Ct. 2151 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether qualified immunity exists. The court must consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 2156. If no constitutional right was violated if the facts were as alleged, the inquiry ends and defendant prevails. See id. If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established . . . `The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The first step under Saucier is to determine whether a constitutional violation was alleged. The constitutional right at issue when it is alleged that a law enforcement officer used excessive force in the course of an arrest or other seizure is the Fourth Amendment right to be free from "unreasonable . . . seizures." U.S. Const. amend. IV; see Graham v. Connor, 490 U.S. 386, 394 (1989). "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of "`the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake." Id. at 396 (citations omitted). Because the reasonableness standard is not capable of precise definition or mechanical application. "its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. The reasonableness inquiry in excessive force cases is an objective one, the question being whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation and without the "20/20 vision of hindsight." Id. at 396-97. "Gratuitous and completely unnecessary acts of violence by the police during a seizure violate the Fourth Amendment." Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) (physical and verbal sexual harassment of an arrestee violates the Fourth Amendment).
The allegations of the complaint, liberally construed, appear to allege a claim against Evangelista for a violation of Bishop's right to be free from excessive force during the course of an arrest. Bishop alleged in his complaint that he was not resisting in any way when defendant "cranked" his finger during the handcuffing so hard that he fractured it. Because a constitutional violation could be proven based on the complaint's allegations, the court must proceed to the second step of the Saucier analysis.
On the undisputed facts in the record (viewed in the light most favorable to Bishop), it would not have been clear to a reasonable officer that it was unlawful to use some force to put the arrestee's hands into handcuffs. The parties disagree whether any force was used during the course of the arrest. But even accepting as true (as the court must at the summary judgment stage) Bishop's contention that force was used when the handcuffs were applied, he has not presented sufficient evidence to raise a triable issue of fact that a reasonable officer in Evangelista's position would understand that the force he was using violated Bishop's right to be free from excessive force.
One indicator of the amount of force used is the injury suffered — the constitution does not protect against de minimis uses of force, and a de minimis injury often reflects a de minimis use of force to effectuate the arrest. Defendant presented evidence that Bishop's finger was not injured during the arrest. First, a medical intake questionnaire prepared when Bishop was taken to the county jail just hours after his arrest reported that Bishop did not have any visible signs of trauma or wounds and did not indicate that Bishop mentioned any problem with his finger having been hurt, although Bishop complained about several other preexisting health problems. Second, Bishop was not taken for medical care at the time of his arrest. Third, a declaration from a radiologist who evaluated an x-ray taken of Bishop's left hand about four months after the alleged incident establishes that the finger did not have characteristics consistent with having been broken within the last six months. Bishop did not rebut this evidence. Bishop presented no medical records and no other evidence (other than his mere say-so) in support of his allegation that his finger was broken during the course of the handcuffing. Allegations of injury without medical records or other evidence of injury are insufficient to establish excessive force. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001), citing Foster v. Metropolitan Airports Com'n., 914 F.2d 1076, 1083 (8th Cir. 1990). Bishop apparently believes that his finger was broken during the arrest, but he has not shown he has any medical training or expertise upon which to base such a claim. Thus, taken in the light most favorable to Bishop, the undisputed evidence shows that his finger was not broken. Bishop did not show more than a de minimis injury, and the only evidence is that his finger was bent. The nature of the injury reflects a de minimis use of force.
Before Evangelista effectuated the arrest, he enlisted the assistance of other parole agents in order to deter any physical resistance by Bishop. During the arrest, Evangelista used some amount force to handcuff Bishop who undisputedly was not resisting the arrest but did not have his hands already clasped behind his back. After Bishop was handcuffed and complained of a strain on his shoulders, Evangelista switched Bishop from handcuffs (with the hands behind the back) to waist-cuffs (with the hands at the side of the body) in order to alleviate the claimed strain on Bishop's previous shoulder injury. Even if Bishop's finger was wrenched during the course of the handcuffing, Bishop has not raised a triable issue of fact that Evangelista's actions violated any "clearly established" constitutional or statutory right and a reasonable law enforcement officer would not be on notice that using that force necessary to handcuff the arrestee was clearly unlawful. As the Supreme Court observed, "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment.'" Graham v. Connor, 490 U.S. at 396 (citation omitted). Evangelista is entitled to qualified immunity and is entitled to summary judgment in his favor.
MISCELLANEOUS MOTIONS
Bishop recently filed several miscellaneous motions which the court now addresses. Bishop filed an "Order of Service" in which he requested that he be placed in protective custody by the FBI and that the court "order State Fund Insurance to stop dogging my claim" for worker's compensation. Bishop's request is DENIED. (Docket # 14.) The court does not have the authority to compel him to be placed in protective custody by the FBI even if he could show the need to be protected. The court also does not have the authority in this civil rights action to compel better processing of a worker's compensation claim by a nonparty.
Bishop also filed a "Motion For Requesting Court Order Being Granted of A Full Scale Investigation On The Following Agencies, Departments, Facilities, Offices, Court Building, Etc." In this motion he requested, among other things, that the court order (1) the FBI to place a variety of institutions "behind the wall level," (2) the Attorney General to remove falsified charges and pay his rent, utilities and food bill, and (3) the state compensation insurance office workers to stop laughing at him and write a report. The motion is DENIED. (Docket # 15.)
Bishop also filed a "Motion For Amendment, Motion For Protective Custody, Motion To Amend Attempted Murder." This incomprehensible motion is DENIED. (Docket # 16.)
Bishop also filed a "Motion Requesting To Be Granted," in which he asked that he be placed in FBI protective custody because the city of Salinas (where he is on parole) is a dangerous place. The motion is DENIED. (Docket # 17.) The court will not order the FBI to take any particular action with respect to Bishop's complaints. The court notes that one of the documents attached to this motion is a petition for writ of habeas corpus filed in the Supreme Court of California. It is not clear whether Bishop wishes to file a petition for writ of habeas corpus in this court but, if he does, he must file it as a separate action and not as an exhibit in this civil rights action. To the extent Bishop wishes to challenge the execution of his sentence, his sole remedy is to file a petition for writ of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), after he exhausts state judicial remedies, Granberry v. Greer, 481 U.S. 129, 134 (1987).
Lastly, Bishop filed a Notice to Discuss Settlement dated July 26, 2002, seeking a variety of things, including issuance of a drivers license, a $3 million settlement, completion of his workers compensation files and relocation into protective custody, which this Court is not in a position to supply. The motion reflected in the July 26, 2002 filing is DENIED.
CONCLUSION
Defendant's motion for summary judgment is GRANTED. (Docket # 7.) Plaintiff's miscellaneous motions filed on July 15 and 16, 2002 are DENIED. (Docket #s 14, 15, 16, and 17.) The clerk shall close the file.
IT IS SO ORDERED.