Summary
holding that a prisoner's due process rights were not violated when he was placed on lockdown for over two months without notice or hearing” because the prisoner's restricted access to programs and activities for a limited period was “well within the terms of confinement ordinarily contemplated by a prison sentence”
Summary of this case from Hernandez v. CateOpinion
No. CIV. S-98-2211 WBS/GGH
January 9, 2002
MEMORANDUM AND ORDER RE: R. Abney, J. Bartley, T. Bates, A. Bigard, L. Runyon, D. Viale, and V. Zumpano; Motion for Summary Judgment
Plaintiffs Estate of Solomon Torres, et al. sue defendants Cal Terhune et al. for various federal constitutional and state law claims. Defendants R. Abney, J. Bartley, T. Bates, A. Bigard, L. Runyon, D. Viale, and V. Zumpano, who were correctional officers for the California Department of Corrections ("CDC") at the time of the incident giving rise to this suit, move for summary judgment pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
Plaintiffs allege that defendant prison officials shot and killed Solomon Eli Torres aka David Solomon Torres ("Torres"), an inmate at California's High Desert State Prison ("HDSP"), during a prison-yard altercation between inmates belonging to the "Southern Hispanics" and "Others" factions on February 4, 1998.
Plaintiffs allege that the altercation among the "Southern Hispanics" and "Others" in February 1998 was in retaliation for a prior incident in November 1997 in which two inmates from "Southern Hispanics" stabbed two inmates from "Others." (Pls.' Opp'n at 46-47). As a result of the November 1997 incident, the two groups were placed on "lockdown" status, which limited their access to various prison programs and activities. Torres was included among the "Southern Hispanics" who were placed on lockdown.
A HDSP memorandum summarizing events leading up to the February 4, 1998 incident suggests that the November 1997 incident involved four "Southern Hispanics" inmates and five "Others" inmates. The November 1997 incident apparently occurred in retaliation for an incident in August 1996, in which two inmates from the "Others" group assaulted a "Southern Hispanics" inmate. (Pls.' Opp'n at 15, Ex. 5)
On February 4, 1998, prison officials initiated a release of inmates from both groups into the exercise yard. Eight "Southern Hispanics" and ten "Others" were released from their housing units into the yard in alternating groups of two. (Pls.' Opp'n at 18, Ex. 14). After ten "Others" inmates were released, they started walking around the track close together, and were ordered by the correctional officers to break up into smaller groups. (Pls.' Opp'n at 19).
The "Others" complied with this order, but shortly thereafter began "grouping up" again. Thereafter, the "Others" inmates ran toward and attacked the "Southern Hispanics". At this time, Runyon was in an observation tower and Viale was in a building control booth. Abney, Bartley, Bigard, and Zumpano, were inside the yard, while the location of Bates at the time of the incident is disputed. (Pls.' Opp. Stmt. of Undisputed Facts, hereinafter "Pls.' SUF" ¶ 10).
The incident report and depositions suggest that various officers responded to the melee by yelling "get down." Some officers sprayed the fighting inmates with OC pepper spray. Runyon fired three warning shots and Viale fired one warning shot from their Mini-14 rifles. Runyon also fired two shots for effect, and defendants concede that one of these bullets struck Torres in the back. (Defs.' Stmt. of Undisputed Facts, hereinafter "Defs.' SUF" ¶¶ 15-30). Defendants contend that Torres was moving back and forth and brutally kicking another inmate when he was shot, and that Runyon fired the shot to disable Torres. (Defs.' SUF ¶¶ 26, 30).
Plaintiffs dispute defendants' characterization of the incident. Plaintiffs allege that some officers did not intervene to stop the fighting with non-lethal means, because they sought to avoid being struck by flying bullets. (Pls.' SUF ¶¶ 18-20). Plaintiffs further contend that Torres was not struck by the bullet while he was standing up but rather "while he was on the ground being punched and stumped by other inmate(s)." (Pls.' Opp'n at 20).
Plaintiffs argue that the policies and practices related to the use of lethal force in 1998 were unconstitutional. (Compl. ¶ 64). They further allege that defendants failed to properly train and supervise correctional officers in the use of lethal force against inmates. (Compl. ¶ 69).
Plaintiffs contend that prior to the February 1998 altercation, defendants adopted an "integrated yard policy," under which inmates of various ethnic and factional affiliations were sent into the yard. (Compl. ¶ 95). According to plaintiffs, this environment was promoted despite prison officials' knowledge of intercultural hostilities between inmates and the likelihood of violent altercations when members of these groups were released to the yard at the same time.
Defendants now move for summary judgment on various grounds including qualified immunity.
II. Discussion
The court must grant summary judgment to a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party adverse to a motion for summary judgment may not simply deny generally the pleadings of the movant; the adverse party must designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Simply put, "a summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The non-moving party must show more than a mere "metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
A. Qualified Immunity
A public official is entitled to qualified immunity if the law governing the official's conduct was not clearly established, or if under clearly established law he could have reasonably believed that his conduct was lawful. Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The defendant bears the burden of establishing qualified immunity. Crawford-El v. Britton, 523 U.S. 574, 586-87 (1998).
The United States Supreme Court recently articulated the following test for determining qualified immunity. As a threshold question, the court must ask: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [official's] conduct violated a constitutional right?" Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). If the answer is affirmative in that "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." Id. at 2156. The Court emphasized that the "relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. If the answer is negative, the official is entitled to qualified immunity.
The Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991), cited in Saucier, 121 S.Ct. at 2156. Where a defendant seeks qualified immunity, courts are encouraged to make a ruling on the issue "early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Id. at 2156-57.
B. Eighth Amendment Limits on the Use of Force
The law governing the use of force in the prison context is well-settled. "After incarceration, only the `unnecessary and wanton infliction of pain' . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986) (citations and internal quotations omitted). To determine if a prison security measure taken to quell a disturbance inflicted unnecessary and wanton pain and suffering, a court must consider whether the force "was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. at 320-321; see also Jeffers, 267 F.3d at 910-11. To be cruel and unusual punishment, the conduct "must involve more than ordinary lack of due care for the prisoner's interests or safety" and evince "obduracy and wantonness, not inadvertence or error in good faith." Whitley, 475 U.S. at 319.
Some of the factors that may be considered by district courts in assessing an alleged Eighth Amendment violation include the need for the application of force in a particular circumstance, the relationship between that need and the amount of force actually inflicted, and the extent of injury inflicted. Id. at 320. A court should also evaluate the "extent of the threat to the safety of staff an inmates" as reasonably perceived by prison officials, and "any efforts made to temper the severity of a forceful response." Id.
The Supreme Court has emphasized that evidence of improper motive underlying an alleged constitutional violation cannot be used to rebut a defense of qualified immunity. Crawford-El v. Britton, 523 U.S. 574, 588 (1998) (noting that "[e]vidence concerning the defendant's subjective intent is simply irrelevant" to qualified immunity defense). However, a defendant's mental state is relevant "where it is an element of the alleged constitutional violation" and thus is an essential component of the plaintiff's affirmative case. Id. at 589; Jeffers, 267 F.3d at 911. In order to survive summary judgment, plaintiffs must "put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury." Crawford-El, 523 U.S. at 598 (internal quotations omitted).
In Jeffers v. Gomez, the Ninth Circuit held that an inmate shot by correctional officers during a major prison disturbance had to allege facts demonstrating that the officers shot at him, or permitted him to be shot, "because of an unconstitutional motive or state of mind." 267 F.3d at 911.
C. Eighth Amendment Claims under Section 1983
1. Use of Lethal Force by Runyon
a. Constitutional Violation
Considering the evidence in a light most favorable to plaintiffs, a reasonable jury could conclude that Runyon's firing of the lethal shot constituted an Eighth Amendment violation. The CDC shooting policy in effect on February 4, 1998 provided that:
The Supreme Court has emphasized that the Due Process Clause of the Fourteenth Amendment affords no greater substantive protection than does the Eighth Amendment in cases involving claims of excessive force in the prison context. Whitley, 475 U.S. at 327. Thus, plaintiffs' claims are analyzed under the Eighth Amendment.
firearms shall only be used when reasonably necessary to prevent or stop escapes, the taking of hostages, or other circumstances which present an immediate danger of escape, loss of life, great bodily injury, or damage to a substantial amount of valuable property.
(Pls.' Opp'n at 12). The policy further provided that firearms "shall be used only as a last resort after other reasonable and available resources have been considered and exhausted or are determined to be clearly inappropriate in view of the immediate need to use armed force." (Id. at 13).
The policy stated that when necessary to fire at a person, the shot should be aimed to disable rather than to kill. (Id. at 45). Finally, the policy provided that firearms were not to be used to stop "fist fights" between inmates when there is no danger of death or great bodily harm. (Id.). The identical use of force policy was considered and determined to be constitutionally valid by the Ninth Circuit in Jeffers v. Gomez, 267 F.3d at 915.
Defendants contend that Runyon fired his weapon pursuant to and within the scope of the shooting policy in place at the time of the incident. (Defs.' Mot. at 7-8). Defendants describe the situation as one in which an extremely violent melee broke out among 18 inmates from rival ethnic groups. Runyon and other officers were screaming repeatedly for inmates to "get down" and the inmates did not comply. (Defs.' Mot. at 2). Runyon fired three warning shots, Viale fired one warning shot, and some of the officers used pepper spray. Defendants contend that none of these methods worked to quell the disturbance, as some inmates stopped fighting temporarily and then started again. Defendants provide the following characterization of the incident:
In coming to the decision to shoot for effect, Officer Runyon believed that it was an extremely brutal riot situation with multiple assailants on individuals who were on the ground not defending themselves. He felt the situation was out of control. He saw an inmate that appeared to be unconscious and not defending himself on the ground with multiple assailants kicking and hitting him, in what appeared to be lethal blows. Officer Runyon testified, "You pray you don't have to make the shot; I had to make the shot." He targeted an inmate, later identified as Torres, who was repeatedly kicking the defenseless inmate who was on the ground. He shot because he felt that inmate was suffering great bodily injury and potentially could be killed. In conformity with the Shooting Policy Officer Runyon aimed at the lower extremities of inmate Torres in an attempt to disable rather than kill. Officer Runyon was between 90 and 100 yards away, and the inmate, later identified as Torres, was moving quite a bit while administering multiple kicks to the inmate on the ground. The inmate he targeted and shot, later identified as Torres, fell to the ground. Shortly thereafter the inmates stopped fighting and the riot situation was brought under control.
(Defs.' Mot. at 2-3). After conducting an investigation of the shooting, the Shooting Review Board ("SRB") concluded that Runyon acted within the guidelines of the CDC shooting policy. (Pls.' Opp'n Ex. 41).
Plaintiffs contend that when Torres was shot, he was not standing up, moving back and forth, or inflicting lethal blows on another inmate. Plaintiffs argue that Torres was lying on the ground receiving repetitive blows to various parts of his body when Runyon fired his rifle at him.
Plaintiffs' evidence creates a disputed issue of fact as to the position of Torres' when he was shot. Autopsy photographs indicate that the gunshot entry wound was located at the lower right quadrant of his back near his spine. (Pls.' Opp'n Ex. 29). The exit wound was located under his left underarm. (Pls.' Opp'n Ex. 30). Autopsy photos also reveal a large bruise on above his right eye on his forehead. (Pls.' Opp'n Ex. 28). Plaintiffs point out that the shirt which Torres was wearing on February 4, 1998 had no bullet entry hole, suggesting that his "head was close to the ground with his back slightly elevated" when the bullet entered his back. (Pls.' Opp'n at 20).
A declaration submitted by forensic pathologist Sylvia Comparini, who performed a second autopsy on Torres' body, contains the following conclusions:
The entry wound, the path of the bullet inside of Torres' body, the exit wound, Torres' shirt, the contusion/abrasion on his knee, and arms and multiple rib fractures, indicate that Torres was either laying on his left arm, in a fetal position, or kneeling down, with his head close to the ground, in a fetal position, hugging himself, in an effort to deflect the blows he was receiving to his side and the ribs area.
(Comparini Decl. at 17).
Furthermore, in the incident report which he submitted on February 4, 1998, Runyon wrote the following:
The victim, inmate Ifopo, appeared motionless and no longer able to defend himself. At this point I felt that I must intervene as great bodily injury was immanent [sic] if not already existent. I aimed the Mini 14 at the lower extremities of an assaulting inmate who was kicking inmate Ifopo in the neck/head area and fired for effect. I saw the assaulting inmate, later identified as Torres . . . drop to the ground and fighting ceased in circle #1.
The Shooting Review board noted in its report that based on interviews with other staff witnesses, Ifopo was "observed to be lying on the ground, appeared to be unconscious and defenseless, sustaining serious injuries from kicks to his head area by Inmate Torres . . . and two other unidentified inmates." (Pls.' Opp'n Ex. 41 at 1092). However, the official incident report, which listed the injuries sustained by various inmates involved in the altercation noted that Ifopo only "sustained a reddened area to the left side of his chin," whereas some of the other inmates suffered blunt trauma, abrasions, and lacerations. (Pls.' Opp'n Ex. 14). The medical report documenting Ifopo's injuries indicates that this inmate sustained redness on his left knee, but that no bleeding or swelling was present. (Pls.' Opp'n Ex. 46). Plaintiffs' evidence raises a triable issue of fact with respect to Runyon's state of mind when he aimed and shot at Torres. To determine if a prison security measure taken to quell a disturbance inflicted unnecessary and wanton pain and suffering, a court must consider whether the force "was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-321. In Whitley, the Supreme Court emphasized than in evaluating various factors to determine the existence of an Eighth Amendment violation, a court may draw inferences "as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." 475 U.S. at 321.
The parties dispute whether Ifopo was the inmate who was allegedly being kicked by Torres when the decedent was shot. (Defs.' Reply at 13-14).
The SRB report indicates that, according to the medical report, Ifopo sustained injuries to his head and left knee. (Pls.' Opp'n Ex. 41 at 1094). While this medical report is almost illegible, the court does not ascertain from it that Ifopo suffered serious head injuries. (Pls.' Opp'n Ex. 46).
Considering the facts in a light most favorable to plaintiffs, a reasonable jury could conclude that the force applied by Runyon may not have been applied "in a good faith effort to maintain or restore discipline" and raises an inference of impermissible motive. Id. The physical evidence presented by plaintiffs, including Ifopo's reported injuries, is inconsistent with the conclusion that Ifopo was being brutally kicked by Torres in the head area when the latter was shot. Furthermore, Torres could not have posed a threat of imminent great bodily injury or death to another inmate if he was indeed lying on the ground and being beaten when Runyon aimed the rifle and shot at him. Under these facts, the application of force was significantly greater than the need for it. Id. A reasonable jury could find that Runyon's application of force by shooting Torres, even if only intended to disable him, was clearly unwarranted under the circumstances and may have been motivated by a desire to cause harm. See id. at 320; Saucier, 121 S.Ct. at 2156.
b. Qualified Immunity Defense
In proceeding to the second question under Saucier, the court must decide whether Runyon could reasonably have believed that his conduct was lawful in the situation he confronted. 121 S.Ct. at 2159 ("The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards."). The Supreme Court emphasized in Saucier that the "concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints" on the conduct of state officials. Id. at 2158.
In evaluating allegations of excessive force in the Fourth Amendment context, the Supreme Court held that "the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest." Saucier, 121 S.Ct. at 2153. The Ninth Circuit, evaluating an Eighth Amendment excessive force claim in Jeffers, interpreted Saucier as cautioning courts not to deny summary judgment "any time a material issue of fact remains" on the underlying constitutional claim. 267 F.3d at 910-910.
In Saucier, the factual dispute rested on a plaintiffs' claim that a police officer violated his Fourth Amendment right by using excessive force to arrest him. Id. at 2155. The plaintiff, who was planning to protest the Vice President's speech at a public event, was forcibly removed from the audience by police officers and shoved into a police van. Id. The Supreme Court assumed that there may have been a constitutional violation in this case, but nevertheless found that in light of the circumstances as the officers' perceived them, the plaintiff may have posed a safety threat and the officers' response was "within the bounds of appropriate police responses." Id. at 2160. The Supreme Court confirmed that qualified immunity operates "to protect officers from the sometimes `hazy border between excessive and acceptable force' and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Id. at 2158 (citations omitted).
Unlike the factual circumstances in Saucier, the factual dispute underlying this case does not fall within the "hazy border between excessive and acceptable force." Id. Here, Runyon contends that he reacted to what he believed was great bodily injury posed by Torres, who he and the other defendants say was brutally kicking another inmate. Runyon's theory is not that he targeted an inmate who was brutally kicking another inmate, and that he accidentally hit Torres. Rather, Runyon contends that he specifically targeted Torres as the aggressor.
Defendants suggest that the court should accept their characterization of the incident. Under defendants' version of the melee which paints Torres as an aggressor who was kicking another inmate in the head and neck, a reasonable officer could have believed that shooting Torres to disable him was lawful. The lethal wound inflicted would have been a tragic consequence, but not an automatic bar to a qualified immunity defense. However, this case is unique because both sides present probative yet contradictory evidence of the circumstances which led to the use of force. If courts in such cases were to ignore material facts presented by plaintiffs any time a defendant raised a qualified immunity defense, it seems that state officials would be able to easily escape § 1983 liability by presenting a conflicting version of the facts showing that their conduct was lawful under the circumstances.
Plaintiffs, however, contend that defendants' characterization of the incident is inaccurate given the physical evidence indicating that Torres may have been the victim rather than the perpetrator of violence when he was shot. The facts in dispute here are not only whether the force applied to Torres was excessive, but also whether Torres' conduct even warranted the intentional use of force.
On summary judgment, the court must view the record and submissions in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). The court cannot weigh evidence or make credibility determinations. Id. This principle applies to cases involving a qualified immunity defense. Liston v. County of Riverside, 120 F.3d 965, 977 (9th Cir. 1997). Given the disputed issues of fact as to whether Torres was a victim or an aggressor when he was intentionally shot, the court cannot conclude that a reasonable officer in Runyon's position would have believed that his conduct was lawful in light of clearly established standards governing the use of force during a prison disturbance.
Thus, defendant Runyon is not entitled to summary judgment on the basis of qualified immunity on plaintiffs' claim that the shooting violated Torres' Eighth Amendment rights.
2. Liability of Abney, Bartley, Bates, Bigard, Viale, and Zumpano
With Respect to the Use of Force Plaintiffs present no evidence that any of the other six correctional officers used lethal or non-lethal force on Torres. Plaintiff's only viable Eighth Amendment claim against these defendants with respect to the use of force is that they "could have intervened before the use of excessive force, but failed and refused to do so . . ." (Am. Compl. ¶ 71).
In Jeffers, the plaintiff alleged that two correctional officers violated his Eighth Amendment rights during a prison disturbance by failing to prevent each other from firing at him in a malicious manner. 267 F.3d at 912. The Ninth Circuit found that one officers' failure to prevent the other from firing did not create an inference of impermissible motive where each officer focused on quelling the disturbance rather on the actions of his or her colleague. Id. The court found that there was no evidence that each officer was aware that the other was acting in a manner that violated the plaintiff's constitutional rights, or that each had the opportunity to prevent the other's conduct. Id.
Plaintiffs present no evidence showing that Abney, Bartley, Bates, Bigard, Viale, or Zumpano knew that Runyon, who was in the observation tower, was about to fire for effect. They cite deposition testimony indicating that Bartley pulled Abney's shirt to hold him back when shots were fired, and that Bigard testified that he "wasn't in a great big hurry to jump in the middle of shots." (Abney Dep., Defs.' Mot. Ex. A, Pls.' SUF ¶ 18). While this evidence suggests that defendants were conscientious of their own safety during the melee, it does not raise a triable issue that they were deliberately staying back to watch inmates get shot rather than responding to the incident. Furthermore, assuming that defendants knew that Runyon would eventually fire for effect, there is no evidence that they could have done anything to prevent him from shooting at the fighting inmates. The facts demonstrate that officers reacted in various ways, including yelling "get down" and spraying the inmates with pepper spray. Viale fired a warning shot, and the evidence indicates that it was fired into an unoccupied grass area. Defendants' failure to prevent Runyon from firing at Torres does not create an inference of impermissible motive necessary to raise a genuine issue of an Eighth Amendment violation. Jeffers, 267 F.3d at 912.
Plaintiffs submit unsworn statements written by inmates who were witnesses to the incident, contending that no verbal warnings were given. (Pls.' Opp'n Ex. 22, 60). One inmate stated that he only heard shots fired. (Ex. 60). However, two other inmates stated that they heard "yard down" or "get down," while a fourth described the shots that he heard. (Ex. 22, 60). Notwithstanding evidentiary objections to these statements, they are insufficient to create a triable issue that the officers only responded by shooting.
Because no constitutional right would have been violated under the facts alleged by plaintiffs, there is "no necessity for further inquiries concerning qualified immunity." Saucier, 121 S.Ct. at 2156. Defendants Abney, Bartley, Bates, Bigard, Viale, and Zumpano are therefore entitled to summary judgment on claims related to the use of excessive force and failure to prevent the use of excessive force.
3. Yard Release and Protection of Inmates from Harm
It does not appear that any of these defendants made the decision to release the inmates into the exercise yard, that any of them had any influence as to the manner in which the inmates were to be released, or that any of them knew that the inmates were going to fight. Defendants contend that they learned about the decision to release the inmates from their supervisors on the morning of February 4, 1998. (Defs.' SUF ¶ 1-2).
The deliberate indifference standard governs defendants' behavior in this context. Jeffers, 267 F.3d at 913. "A prison official is deliberately indifferent to a substantial risk of serious harm to inmates if that official is subjectively aware of the risk and does nothing to prevent the resulting harm." Id. (citing Farmer v. Brennan, 511 U.S. 825, 828-29 (1994)). The official must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Plaintiffs present no evidence that raises an inference that the defendants had "a sufficiently culpable state of mind" to create a triable issue of their deliberate indifference toward the safety of inmates. Abney is the only officer whom plaintiffs identify as having some involvement in the negotiations with inmates that led up to the yard release on February 4, 1998. An internal memo written by Correctional Sergeant Boitano to Facility Captain Stone, discussing events prior to the February 4, 1998 altercation, mentions that on January 21, 1998, Abney met with Boitano, other staff members, and four inmates. (Pls.' Opp'n Ex. 5). The memo suggests that this meeting was one of several meetings in which inmates discussed their differences and staff members encouraged reconciliation so that the inmates could begin programming together. (Id.). Abney's involvement in this process is insufficient to raise a triable issue that he knew of and disregarded a substantial risk of serious harm to inmates when they were released into the yard on February 4, 1998.
The kind of evidence that courts have suggested would give rise to an inference of deliberate indifference is entirely lacking here. In Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001), the Ninth Circuit affirmed a district court's denial of qualified immunity to correctional officers where there was a genuine issue of fact whether the officers were deliberately indifferent to a substantial risk that an inmate would be seriously harmed if he was placed in a racially integrated yard. In Prunty, an African-American inmate alleged that when he was released into the exercise yard on one occasion, he was attacked by a Mexican-American inmate and the correctional officers on duty watched the fight for about five minutes without attempting to stop it. Id. at 864. On another occasion, before another Mexican-American inmate was released into the yard with the plaintiff, one guard joked about a potential fight among the inmates, and another asked if tear gas would bother his asthma while other guards laughed. Id. at 864-65.
The Ninth Circuit found that the plaintiff's evidence "paint[ed] a gladiator-like scenario, in which prison guards are aware that placing inmates of different races in the yard at the same time presents a serious risk of violent outbreaks." Id. at 867. The court further noted that:
The defendants awareness of and indifference to this risk is demonstrated by the alleged frequency with which such outbreaks occur, by the alleged jokes made by the guards to [the plaintiff] before they released a Mexican-American inmate into the yard with him, and by the alleged fact that the guards failed to intervene while [plaintiff] was attacked by another inmate.
Id.
Plaintiffs contend that defendants had knowledge that the "Southern Hispanics" and "Others" groups had a history of violence. This history includes an incident in August 1996, in which two inmates from the "Others" group assaulted a "Southern Hispanics" inmate and an incident in November 1997 in which two inmates from the "Southern Hispanics" stabbed two inmates from "Others." (Pls.' Opp'n at 14-15, Ex. 5). They cite David Tristan's deposition testimony, in which he stated:
There's times in which I personally was involved in unlocking a prison after a major riot. I was given assurances by everyone involved that everything was settled, that the differences had been settled. We let out the inmates, and within a few minutes there's a big riot and the subsequent riot is worse than the first one and we have to lock down the institution again, and then we start all over again, but we cannot be as a prison system on perpetual lockdown. We have to try to get the inmates to program successfully as best we can.
(Tristan Dep. at 38). However, assuming that all of the correctional officers knew of the prior incidents among the rival groups, and understood that a release of rivals into the exercise yard could trigger an altercation, plaintiffs evidence is still insufficient to raise an inference of deliberate indifference. Unlike the circumstances giving rise to the Prunty case, plaintiffs' evidence is devoid of any facts suggesting that defendants predicted or encouraged violent altercations among inmates. 249 F.3d at 867. Defendants Abney, Bartley, Bates, Bigard, Runyon, Viale, and Zumpano are therefore entitled to summary judgment on claims related to the yard release.
4. Emergency Medical Care
Plaintiffs allege that prior to his death, Torres was deprived of adequate emergency medical care in violation of his Eighth Amendment rights. (Pls.' Opp'n at 42-43). They contend that his gunshot injuries were survivable, and that failure to perform specific medical procedures contributed to his death. (Id.)
The threshold question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed an inmate to a sufficiently substantial risk of serious damage to his future health. Farmer, 511 U.S. at 843. To establish deliberate indifference, plaintiffs must show that defendants knew of and disregarded an excessive risk to the decedent's health. Farmer, 511 U.S. at 837.
There is no evidence that any of the officer defendants administered medical care to Torres or that they even had medical training that would enable them to affirmatively respond to gunshot injuries. There is no evidence that the officers ignored Torres' need for medical care or prevented the rendering of care following the shooting. The incident report notes that Medical Technical Assistants administered CPR to Torres and that Captain Stone applied pressure to his wound. (Pls.' Opp'n Ex. 14). Plaintiffs dispute that CPR was actually performed and allege that specific medical procedures, such as insertion of tubes to relieve the pressure in his chest cavity, were not performed in a timely manner. (Pls.' Opp'n at 35-36). However, plaintiffs present no evidence that any of the individual officers acted in a deliberately indifferent manner with respect to Torres' medical treatment following the shooting.
Thus, defendants Abney, Bartley, Bates, Bigard, Runyon, Viale, and Zumpano are entitled to summary judgment on the issue of emergency medical care.
5. Use of Force and Integrated Yard Policies; Failure to Train, Discipline, and Supervise; Shooting Review Board Investigation; Warden Yearwood; and Emergency Medical Care Policies
Defendants were correctional officers at the time of the February 4, 1998 incident. Because they did not have supervisory or policymaking responsibilities, several of the claims in the complaint are not relevant to these defendants. Thus, plaintiffs' claims pertaining to CDC and HDSP use of force policies, the integrated yard policy, training, supervision, discipline, the Shooting Review Board investigation, policies related to emergency medical care, and defendant Yearwood are dismissed against defendants Abney, Bartley, Bates, Bigard, Runyon, Viale, and Zumpano.
D. Fourteenth Amendment Claims
1. Torres' Placement on Lockdown
Plaintiffs allege that Torres' due process rights were violated when he was placed on lockdown status between November 24, 1997 and February 4, 1998 without notice or a hearing. This lockdown was a result of a prior incident in which members of the "Southern Hispanics" group stabbed members of the "Others" group. Torres and other inmates from both groups were placed on lockdown status, which reduced their access to various programs and activities for a limited period of time. (Pls.' Opp'n at 6).
Plaintiffs have presented no evidence indicating that the officer defendants were involved in the decision to place Torres' on lockdown. In addition, plaintiffs' claim fails on the merits. The Supreme Court has emphasized that "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley, 475 U.S. at 321-22. The Due Process Clause is not violated where an inmate is transferred "to less amenable and more restrictive quarters for nonpunitive reasons" as these restrictions are "well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt v. Helms, 459 U.S. 460, 468 (1983).
Plaintiffs have not shown that Torres was restrained in a manner that "impose[d] atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandlin v. Conner, 515 U.S. 472, 484 (1995). Plaintiffs' evidence is insufficient to establish a genuine issue of a Fourteenth Amendment violation arising out of Torres' placement on lockdown.
2. Plaintiffs' Substantive Due Process Claim
Plaintiffs claim that they were denied their Fourteenth Amendment right to a familial relationship with Torres. (Am. Compl. ¶¶ 94, 95). Parents and children of a person killed by state officials may assert a due process claim based on loss of companionship. Moreland v. Las Vegas Metropolitan Police, 159 F.3d 365, 371 (9th Cir. 1998) (reasoning that Fourteenth Amendment claim brought by survivors was "based on the related deprivation of their liberty interest arising out of their relationship with [the decedent]") (citing Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991)). Plaintiffs' Fourteenth Amendment rights to the companionship of Torres, however, derive from the decedent's constitutional rights. Johnson v. City of Oakland, No. C-97-283, 1997 WL 776368, at *4 (N.D.Cal. Dec. 3, 1997) (citing Smith v. Fontana, 818 F.2d 1411, 1420 (9th Cir. 1987)); see also Rhyne v. Henderson, 973 F.2d 386, 391 (5th Cir. 1992) (finding that mother's liberty interest failed where evidence failed to establish underlying constitutional violation of decedent's rights).
Because the court finds that Abney, Bartley, Bates, Bigard, Viale, and Zumpano did not violate Torres' constitutional rights, plaintiffs' Fourteenth Amendment claim against these defendants fails.
Plaintiffs have raised a triable issue with respect to the violation of plaintiffs' due process rights by defendant Runyon. In Moreland v. Las Vegas Metropolitan Police, 159 F.3d at 372, the Ninth Circuit held that a "purpose to cause harm" is necessary to establish a violation of due process rights to family association, where the decedent was an innocent bystander accidentally shot by police during a gunfight. Although the factual context of Moreland was not a prison disturbance, the Ninth Circuit drew upon the Supreme Court's reasoning in Sacramento v. Lewis, 523 U.S. 833, 854 (1998), that purpose to cause harm is necessary for due process liability in cases involving police pursuits, just as it is necessary for Eighth Amendment liability in prison riot cases. Id. (citing Lewis, 523 U.S. at 853 (1998)). In Lewis, the Supreme Court held that only a purpose to cause harm unrelated to a legitimate law enforcement objective would satisfy "the element of arbitrary conduct shocking to the conscience" which would be necessary for a due process violation. 523 U.S. at 836. The reasoning in Lewis and Moreland suggests that the level of culpability necessary to establish a violation of Torres' Eighth Amendment rights is the same state of mind necessary to establish a violation of plaintiffs' due process rights arising from Torres' death. Here, plaintiffs have raised a triable issue of fact that Runyon's shooting violated Torres' Eighth Amendment rights, as their evidence raises an inference of impermissible motive underlying the shooting. Thus, plaintiffs' evidence raises a triable issue with respect to plaintiffs' Fourteenth Amendment claim against Runyon as well.
3. Equal Protection Claim
Plaintiffs allege that Torres was also denied his right to equal protection under the Fourteenth Amendment. (Am. Compl. ¶ 68). This claim fails because plaintiffs present no evidence raising a triable issue of fact that Torres was treated differently from similarly situated persons with respect to the lockdown, yard release, use of force, or medical care. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).
E. Section 1985 Claim
Plaintiffs allege that the defendants conspired to release rival gang members into the yard knowing that they would fight with one another. (Compl. ¶ 75). Plaintiffs contend that the defendants manipulated facts to justify Torres' death, fabricated investigation and autopsy reports, and destroyed evidence demonstrating that Torres was an innocent victim. (Compl. ¶¶ 76, 77, 81). They also allege that defendants conspired to enforce the integrated yard policy knowing that it would result in violence, and an unwritten lethal force policy which encouraged officers to shoot inmates for unlawful reasons. (Compl. ¶¶ 82-84). Plaintiffs' allegations are not supported by the evidence.
To state a claim under 42 U.S.C. § 1985 for conspiracy to interfere with civil rights, plaintiffs must include an allegation of racial or class-based animus. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) ("To establish racial or class-based animus, a plaintiff must show `invidiously discriminatory motivation . . . behind the conspirators' action.'") (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Furthermore, to state a claim for conspiracy under § 1985, allegations must be supported by specific facts. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) ("A claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient.").
Plaintiffs contend that the "Southern Hispanics," of which Torres was a member, is a protected class for the purpose of § 1985. However, plaintiffs have produced no evidence suggesting the existence of racial or class-based animus on the part of defendants underlying a conspiracy to deprive the decedent of his civil rights. Furthermore, plaintiffs present no facts suggesting that defendants acted jointly to deprive Torres of his constitutional rights. Plaintiffs' allegations are insufficient, as a matter of law, to establish a § 1985 violation.
To the extent plaintiffs' request to add complaint allegations in support of the § 1985 claim can be construed as a motion for leave to amend their complaint, this motion is DENIED. Allowing plaintiffs to amend the complaint at this stage in the litigation, after summary judgment motions have been filed, would be inappropriate under either the standard of Fed.R.Civ.P. 16(b) or the more liberal standard of Fed.R.Civ.P. 15. More importantly, the evidence presented in opposition to defendants' motion is insufficient, regardless of the allegations of the complaint, to overcome defendants' motion.
F. Claims Against Defendants in their Official Capacity
Plaintiffs have sued the seven defendants for damages in their individual and official capacities. The Eleventh Amendment bars a suit for damages against a state official who is sued in his official capacity in federal court. Kentucky v. Graham, 473 U.S. 159, 169 (1985); Dittman v. California, 191 F.3d 1020, 1026 (9th Cir. 1999). Plaintiffs' claims against the seven defendants in their official capacity are dismissed.
G. State Claims
1. Defendant Runyon
a. Wrongful Death
Under California Penal Code section 196, homicide committed by a public officer is justifiable homicide if, inter alia, it is "necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty." Cal Penal Code § 196. The test for determining whether a homicide was justifiable under § 196 is "whether the circumstances reasonably create[d] a fear of death or serious bodily harm to the officer or to another." Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 349 (1996).
Government Code section 820.2 similarly provides immunity to a public employee from liability based on "an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion is abused." Cal. Gov't Code § 820.2. However, this statute does not confer immunity on officers for discretionary acts involving the unreasonable use of force. Price v. County of San Diego, 990 F. Supp. 1230 (S.D.Cal. 1998) (holding that § 820.2 provided immunity to officers who did not use excessive force in restraining plaintiff during arrest).
For the same reasons that the court has determined that plaintiffs have raised a genuine issue whether the shooting of Torres constituted excessive force under the Eighth Amendment, defendant Runyon is also not entitled to immunity under state law.
b. California Civil Code Sections 52 and 52.1
Plaintiffs seek damages pursuant to California Civil Code §§ 52 and 52.1. Section 52.1 provides that a person may bring a cause of action against anyone who interferes with the exercise or enjoyment of constitutional or statutory rights. Cal Civ. Code § 52; Cabesuela v. Browning-Ferris Indus. of California, 68 Cal.App.4th 101, 110 (1998). Section 52 provides for damages based on the violation of civil rights. Cal Civ. Code § 52. To state a cause of action under § 52.1, a plaintiff must establish the existence of violence or intimidation by threat of violence. Id. at 111. California courts have reasoned that § 52.1 must be read in conjunction with § 51.7, which provides that persons have the right to be free from violence or threat of violence committed because of their membership in protected class. Id. (citing Boccato v. City of Hermosa Beach, 29 Cal.App.4th 1797, 1809 (1994)).
Furthermore, the violence or threatened violence must be due to plaintiff's membership in a protected class set forth in § 51.7, or a group similarly protected by constitution or statute from hate crimes.
Plaintiffs have not presented evidence raising a triable issue of fact that any violence or threat of violence was perpetrated against Torres due to racial animus or his membership in a protected group. Their evidence is insufficient, as a matter of law, to establish a claim under Civil Code §§ 52 and 52.1.
c. Intentional and Negligent Infliction of Emotional Distress
Plaintiffs' claims for intentional and negligent infliction of emotional distress arises from their allegations about the way in which prison officials treated them after Torres' death. Plaintiffs allege that defendants showed insensitivity in handling his death and refused to release his property and trust account funds. (Am. Compl. ¶¶ 108-110). The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 n. 7 (1987). Whether plaintiffs can recover for negligent infliction of emotional distress depends on the traditional tort analysis of duty, breach of duty, causation, and damages. Klein v. Children's Hospital Medical Center, 46 Cal.App.4th 889, 895 (1996).
Plaintiffs' claims fail because they have presented no facts indicating that defendant Runyon had any involvement in the handling of Torres' body following his death, the disposition of the decedent's property, or discussions with the Torres family regarding these issues. Because plaintiffs do not allege and present no evidence that defendant Runyon's conduct following Torres' death had any causal connection to their alleged emotional distress, plaintiffs' claims for intentional and negligent infliction of emotional distress against Runyon are dismissed.
d. Negligent Supervision, Training, Hiring, and Retention
Plaintiffs' also present no evidence to support their claim against defendant Runyon for negligent supervision, training, hiring, and retention. Prior to and on February 4, 1998, defendant Runyon was a correctional officer. Plaintiffs do not allege and present no evidence that Runyon had supervisory, training, hiring, and retention responsibilities in the HDSP chain of command. This claim against Runyon is therefore dismissed.
2. State Law Claims Against Abney, Bartley, Bates, Bigard, Viale, and Zumpano
Because the court has dismissed all of plaintiffs' federal claims against defendants Abney, Bartley, Bates, Bigard, Viale, and Zumpano, the court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) as to the state law claims against these defendants.
Under 28 U.S.C. § 1367(c)(3), the court has discretion to dismiss state law claims when it has dismissed all of plaintiff's federal claims. "In the usual case in which federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988); Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991). Some circuits have held that a court may retain jurisdiction over state law claims if extraordinary or unusual circumstances justify their retention. See, e.g., Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996); Wentzka v. Gellman, 991 F.2d 423, 425 (7th Cir. 1993). However, here there has been no showing of extraordinary or unusual circumstances.
H. Evidentiary Objections
Defendants have filed with their reply objections to plaintiffs' documentary exhibits and opposing statement of undisputed material facts. Although these objections have merit, the court does not need to consider the objections in light of its conclusion that plaintiffs have submitted sufficient admissible evidence to create a triable issue of fact warranting denial of summary judgment to defendant Runyon. Defendants' disagreements with the statements in Dr. Comparini's declaration relate to issues of credibility and weight that would be determined by a jury at trial, and are not relevant to the admissibility of this declaration and the statements therein. (Defs.' Reply at 12-13).
Furthermore, plaintiffs' evidence does not raise a triable issue of fact sufficient to defeat summary judgment to defendants Abney, Bartley, Bates, Bigard, Viale, and Zumpano. Thus, the court does not need to consider defendants' evidentiary objections.
Plaintiffs object to defendants' reply brief on the basis that the reply sets forth new arguments. Plaintiffs do not identify what new arguments are set forth in the reply brief, and the court does not ascertain new arguments that could be construed as a "separate motion for summary judgment." The court finds that plaintiffs have not been prejudiced by defendants' reply.
Plaintiffs complain generally about "spoilation of evidence" and discovery abuses by the defendants. Plaintiffs' motion to compel evidence including bullet fragments and casings from the February 4, 1998 shooting was considered and denied by this court on October 3, 2001. Furthermore, plaintiffs have had ample opportunity to file, and have filed, numerous discovery-related motions before this court and the magistrate judge. Finally, this court has bent over backwards to address plaintiffs' concerns and ensure fairness in the discovery process, for example by taking discovery away from the magistrate judge and personally presiding over the parties' depositions.
IT IS THEREFORE ORDERED that:
(1) defendants' motion for summary judgment with respect to plaintiffs' claim against defendant Runyon for excessive force in violation of Torres' Eighth Amendment rights be, and the same hereby is, DENIED.
(2) defendants' motion for summary judgment with respect to plaintiffs' claim against defendant Runyon for violation of plaintiffs' Fourteenth Amendment due process rights be, and the same hereby is, DENIED.
(3) defendants' motion for summary judgment with respect to the remaining federal claims against defendant Runyon be, and the same hereby is, GRANTED.
(4) defendants' motion for summary judgment with respect to plaintiffs' state law claim against defendant Runyon for wrongful death be, and the same hereby is, DENIED.
(5) defendants' motion for summary judgment with respect to the remaining state law claims against defendant Runyon be, and the same hereby is, GRANTED.
(6) defendants' motion for summary judgment with respect to the federal claims against defendants Abney, Bartley, Bates, Bigard, Viale, and Zumpano be, and the same hereby is, GRANTED.
(7) the remaining state law claims against defendants Abney, Bartley, Bates, Bigard, Viale, and Zumpano are DISMISSED pursuant to 28 U.S.C. § 1367(c).