Opinion
Civil No. 03-462-MO.
June 1, 2004
OPINION and ORDER
In this civil-rights lawsuit, plaintiff claims that a county deputy's slamming a file containing written legal materials against plaintiff's ribs constituted cruel-and-unusual punishment in violation of the Eighth Amendment. The court disagrees and thus grants defendants' motion for summary judgment (doc. #18) and denies plaintiff's cross-motion for summary judgment (doc. #26).
I.
During the events relevant to this lawsuit, plaintiff Lance Fleming was housed as an inmate in the Multnomah County Detention Center. On July 17, 2001, plaintiff requested to use the law library. Defendant Deputy Vetter escorted plaintiff to the elevator so plaintiff could get to the library. As he was stepping into the elevator, plaintiff handed Vetter a bundle of legal documents for inspection. (It appears that prison security policies required officers to examine any items an inmate planned to bring to the law library.) According to plaintiff, the documents were in an envelope and probably about two inches thick. No book or other hard object was in the stack. Upon returning the documents to plaintiff, Vetter (in plaintiff's words) "slapped" plaintiff on the bottom part of plaintiff's rib cage with the documents. Plaintiff characterized the force as akin to a "shove" but harder than a "push" which probably would have knocked him over had he not been standing a few inches from the elevator wall. Plaintiff does not recall whether Vetter used just the legal documents themselves or also the back of his hand to slap plaintiff.
The parties agree plaintiff did nothing inappropriate or to provoke Vetter during this encounter. Plaintiff had no further contact with Vetter once plaintiff exited the elevator.
After Vetter slapped him while in the elevator, plaintiff immediately felt a sharp pain in his rib area. Plaintiff did not complain about any pain at that time, although there was a prison nurse in the elevator with them. After observing the incident, however, the nurse exclaimed to Vetter something like, "you must have knocked the breath out of [plaintiff]."
Once he arrived at the library, plaintiff realized he was suffering an angina attack. Plaintiff, therefore, immediately requested medical attention. Vetter arrived at the law library and escorted plaintiff to medical, where a doctor saw plaintiff five or ten minutes after he had requested attention. The doctor treated plaintiff's angina condition but found no medical problem with his ribs. For about six weeks after the incident in the elevator, plaintiff, however, felt sharp pain and had visible bruising in his rib area.
Plaintiff has suffered angina attacks since at least 1996, when he began experiencing attacks about once a month. Plaintiff testified his attacks sometimes occur without cause and sometimes because of stress. It is undisputed Deputy Vetter did not have any knowledge of plaintiff's preexisting angina problems.
Based on his July 17, 2001, encounter with Vetter, plaintiff filed this lawsuit on April 9, 2003. On May 5, 2003, plaintiff filed an amended complaint, alleging Section 1983 claims against both the county and Vetter for equal-protection, substantive due process, and Eighth Amendment violations. Plaintiff also asserted a state-law negligence action against Vetter and a negligent-hiring claim against the county. In answer, defendants denied liability, and the county brought a counterclaim seeking recovery for expenses incurred in treating plaintiff's medical condition.
Both sides have moved for summary judgment. Defendants argue that plaintiff cannot show a constitutional violation under any of the three theories alleged; Vetter also argues that he is entitled to qualified immunity. Defendants additionally argue that plaintiff cannot establish his state law negligence claims. Plaintiff also moved for summary judgment, arguing that the court should find liability as a matter of law.
II.
Summary judgment is appropriate only if there is no "genuine issue as to any material fact." Fed.R.Civ.P. 56(c). "Genuineness" and "materiality" are distinct requirements.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether an issue is "genuine" relates to the quantum of evidence the nonmoving party must produce to defeat summary judgment; there must be sufficient evidence so "that a reasonable jury could return a verdict for the nonmoving party." Id. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50. A fact is "material" only if the substantive law identifies the fact as crucial to the case's outcome. Id. at 248.
In resolving a motion for summary judgment the court must view the facts and inferences in the light most favorable to the nonmoving party. Id. at 255. Thus, at the summary judgment stage, the court must not weigh conflicting evidence. See id.
III.
As mentioned, plaintiff's complaint alleges Section 1983 claims pursuant to equalprotection, substantive due process, and Eight Amendment theories. Defendants moved for summary judgment and carried their initial burden of showing no material issues as to all three theories. In response, plaintiff briefed only his Eighth Amendment theory. Thus, as an initial point, the court grants summary judgment in favor of defendants as to plaintiff's equal-protection and substantive due process claims. The court turns now to plaintiff's Eighth Amendment claim.In moving for summary judgment, Deputy Vetter raises a qualified-immunity defense. The Supreme Court has established a two-step process for analyzing an immunity defense: First, the court must decide whether, construing the facts in the light most favorable to plaintiff, the facts reveal an Eighth Amendment violation at all. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, assuming the facts could support finding a constitutional violation, the court must determine whether a reasonable officer would have known that the conduct at issue was unconstitutional. Id. If the court concludes that the record does not support finding a constitutional violation, it need not answer the second inquiry regarding what a reasonable officer would have known. Id.
The "treatment a prisoner receives in prison" is subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). The Eighth Amendment protects inmates from the "use of excessive physical force."Id. "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Id. at 833 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). But "Eighth Amendment liability requires `more than ordinary lack of due care for the prisoner's interests or safety.'" Id. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Rather it is "obduracy and wantonness . . . that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Wilson v. Seiter, 501 U.S. 294, 299 (1991) (citation omitted).
When, as in this case, a plaintiff alleges that a prison official employed unjustified force, the plaintiff cannot establish an Eighth Amendment violation unless the official applied force "maliciously and sadistically to cause harm."Hudson v. McMillian, 503 U.S. 1, 7 (1992). An Eighth Amendment violation occurs when the official's conduct "`evinced such wantonness with respect to the unjustified infliction of harm as [to be] tantamount to a knowing willingness that it occur.'"Id. (quoting Whitley, 475 U.S. at 321); see also Farmer, 511 U.S. at 836.
The absence of a "serious injury," however, is merely a factor to consider in determining whether the official's conduct constituted "cruel and unusual punishment," and thus does not inherently preclude Eighth Amendment liability. Hudson, 503 U.S. at 7. Nevertheless, the Supreme Court has emphasized, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimus uses of physical force, provided that the use of force is not of a sort `repugnant to the conscience of mankind.'" Id. at 9-10 (quoting Whitley, 475 U.S. at 327). Consistent with the standards announced by the Supreme Court, the Ninth Circuit has restricted Eighth Amendment violations to alleged excessive-force situations which involve "the use of official force or authority that is intentional, unjustified, brutal and offensive to human dignity." Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991) (citation omitted).
Applying Eighth Amendment standards to the case at bar, the court concludes that, as a matter of law, the facts do not show cruel and unusual punishment. The court agrees that the circumstances presented are unlike those presented in many excessive-force situations in that Vetter did not have "to act quickly and decisively" in the face of potential dangers.Hudson, 503 U.S. at 6-7. The court further agrees that under such circumstances officials are given much less leeway in using force. Nevertheless, the court must inquire whether the force was used "maliciously and sadistically to cause harm." Id. (announcing standard in case where officer used force without provocation on inmate who was handcuffed and posed no threat). The court also must analyze whether the force was de minimus, see id. at 9; or, in the Ninth Circuit's language, whether the force was "unjustified, brutal and offensive to human dignity."Felix, 939 F.2d at 702 (citation omitted).
Plaintiff alleges that Vetter's conduct caused bruising of his ribs and an angina attack. Reading the record in favor of plaintiff, the court agrees that a jury could find that Vetter used unjustified force in returning plaintiff's documents. But unjustified force itself does not state an Eighth Amendment claim. To state an Eighth Amendment claim, the plaintiff must show that the officer acted with a malicious and sadistic purpose to harm plaintiff. In some cases, the act itself may constitute sufficient evidence of the official's wrongful purpose to harm. See, e.g., Hudson, 503 U.S. at 4, 8 (finding cognizable claim where officer "punched" an inmate posing no threat "in the mouth, eyes, chest, and stomach while [another officer] held the inmate in place and kicked and punched him"); Felix, 939 F.2d at 701-02 (finding cognizable claim where officers without provocation twice "threw" an inmate posing no threat across the hall and against a wall). In the case at bar, plaintiff characterized Vetter's conduct as a "shove," which Vetter carried out with a two-inch stack of papers. It might be true that Vetter meant to send an unpleasant message to plaintiff. And judging from the nurse's comment that plaintiff's breath may have been taken by Vetter's act, it is reasonable to conclude that Vetter intended for plaintiff to experience some physical discomfort. But Vetter's purpose must have been in the nature of "malicious and sadistic." See Hudson, 503 U.S. at 7. Without additional evidence regarding Vetter's subjective intent, on this record the court cannot find any material issue regarding the presence of a malicious and sadistic purpose to cause harm.
Indeed, the court notes that the record is undisputed that both plaintiff and Vetter were laughing at the time of the incident, suggesting that the parties belived Vetter's conduct was meant in a joking manner. See Ex. 4-1 (investigative memorandum (to which plaintiff did not object) recounting opinion of nurse who was in the elevator that she saw the parties laughing about the incident and that she thus believed Vetter acted in a "joking manner").
In any event, even assuming plaintiff's evidence is sufficient to create a fact issue regarding Vetter's intent, the court finds that the conduct at issue is not the type of conduct implicating the Eighth Amendment. Whatever the outer boundaries of conduct violating the Eighth Amendment may be, the court believes the conduct in this case falls beyond any such boundaries. It was not "brutal and offensive to human dignity." Felix, 939 F.2d at 702. Nor was the conduct "repugnant to the conscience of mankind." Hudson, 503 U.S. at 9 (citation omitted). In returning plaintiff's legal documents, Vetter "slapped" the documents against plaintiff. But Vetter did so with a two-inch stack of legal documents which did not contain any books or other hard objects. When asked to characterize the nature of the force used, plaintiff compared it to a "shove." The Eighth Amendment protects "cruel and unusual" conduct; it cannot be used to redress every push and shove by prison guards, given the daily contact between guards and inmates. Cf. Daniels v. Williams, 474 U.S. 327, 332 (1986) ("Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society."). Plaintiff may be able to prove common law tort claims, but his attempt to make out a constitutional claim under the Eighth Amendment fails.
Plaintiff suggests that the preexisting nature of his angina condition offers support for his claim. It is undisputed, however, that Vetter was unaware of plaintiff's history of heart trouble. The court, therefore, refuses to rely on plaintiff's preexisting heart condition in determining whether an Eighth Amendment violation occurred, given that the Amendment judges an official's conduct in light of an objective assessment of the conduct involved, and the official's state of mind. See Hudson, 503 U.S. at 6-9; cf. Meredith v. Arizona, 523 F.2d 481, 484 (9th Cir. 1975) (finding cognizable claim where plaintiff alleged "an unprovoked assault and battery by a guard upon a prisoner known by the guard to be suffering from an attack of emphysema, by striking him in the solar plexus, hard enough that the `attack rendered the patient plaintiff totally handicapped'" (emphasis added)).
In reminding the court of his angina condition, plaintiff invokes the "eggshell" doctrine, arguing that an actor must accept responsibility for his wrongful actions without regard for whether the actor knew about a victim's hidden ailments. See Plaintiff's Brief at 4. The "eggshell" doctrine, however, cannot be used to answer the threshold question of whether the officer's conduct violated the Eighth Amendment. That doctrine might aid a Section 1983 plaintiff's proving the extent of harm for which an officer, whose conduct in fact did run afoul of the Eighth Amendment, is liable. Cf., e.g., Maurer v. United States, 668 F.2d 98, 99 (2d Cir. 1981) ("It is a settled principle of tort law that when a defendant's wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim. . . . A plaintiff's recovery for damages caused by a defendant's wrongful act may not be proportionately reduced because of a preexisting weakness or susceptibility to injury. . . ." (emphasis added)). But in this case, the court does not find an Eighth Amendment violation at all and thus need not consider whether defendants are liable under the "eggshell" theory for the full extent of plaintiff's damages.
In sum, the court concludes that the undisputed facts show that plaintiff cannot establish an Eighth Amendment violation. Accordingly, the court grants summary judgment in favor of both Vetter and the county as to plaintiff's constitutional claims. And because the court concludes there was no constitutional violation, the court need not answer the second part of Vetter's qualified-immunity defense. See Saucier, 522 U.S. at 201.
IV.
As mentioned plaintiff also asserts common law negligence claims against both defendants. Plaintiff alleges that the court has pendent jurisdiction over the state law claims by virtue of the court's federal-question jurisdiction over the Section 1983 claims. The county also asserted a state-law counterclaim (which the parties did not brief in their summary judgment motions). Specifically, the county counterclaimed under state statutes seeking recovery for the county's health care expenses incurred in treating plaintiff and for other incarceration-related expenses.
Pendent jurisdiction is a "`doctrine of discretion, not of plaintiff's right.'" Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). In determining whether to exercise pendent jurisdiction, the court should consider "at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon, 484 U.S. at 350. As a general rule, "if the federal claims are dismissed before trial," the pendent state law claims also should be dismissed. Gibbs, 383 U.S. at 726; see alsoCarnegie-Mellon, 484 U.S. at 350 n. 7 (noting that "in the usual case in which all federal-law claims are eliminated before trial" the balance of factors will weigh against exercising pendent jurisdiction).
Because the court grants summary judgment as to plaintiff's federal law claims, the court declines to exercise jurisdiction over plaintiff's state law claims and thus will not consider the merits of those claims. Although the parties have briefed, and the court has decided, summary judgment motions, no trial date has yet been set. Moreover, this is not a case in which the parties have spent enormous time and expense in discovery and other pre-trial wrangling. Instead this case involves few facts and narrow issues. Under these circumstances, the court declines to retain jurisdiction over plaintiff's state-law negligence claims and the county's statelaw counterclaim.
V.
For the reasons discussed above, the court grants defendants' motion for summary judgment (doc. #18), and denies plaintiff's motion for partial summary judgment (doc. #26). The court dismisses this lawsuit in full, with prejudice as to plaintiff's federal claims but without prejudice as to the parties' state-law claims.
IT IS SO ORDERED.