Opinion
No. C 00-4664 VRW (PR)
June 6, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc #22)
Plaintiff filed a First Amended Complaint for damages under 42 U.S.C. § 1983 alleging that, while incarcerated at Salinas Valley State Prison ("SVSP"), Correctional Officers J. Esparza and F. Hausmann used excessive force when they beat and sprayed him in the face with pepper spray. Per order filed on July 12, 2001, the court found that plaintiffs allegations, when liberally construed, stated a cognizable claim under § 1983 against Esparza and Hausmann and ordered the United States Marshal to serve them. Defendants now move for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law. They also claim that they are entitled to qualified immunity. Plaintiff, who is no longer incarcerated, did not file an opposition.
Plaintiffs other claims (and corresponding other defendants) were dismissed without prejudice because they had not been exhausted through California's prison administrative process as required by 42 U.S.C. § 1997e(a). July 12, 2001 Order at 2.
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a mater of law." Fed R Civ P 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed R Civ P 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law."Celotex Corp., 477 US at 323.
B. Analysis
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In determining whether the use of force was for the purpose of maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may evaluate the need for application of force, the relationship between that need and the amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Id at 7; LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir 1993).
It is not necessary that a prisoner have suffered significant injury in order to prevail on an Eighth Amendment claim for use of excessive force. Hudson, 503 US at 9. However, the scope of the Eighth Amendment is not without limitation: The Eighth Amendment necessarily excludes from constitutional recognition de minimis uses of force, provided that the use force is not of a sort repugnant to the conscience of mankind. Id at 9-10. Although a prisoner may believe that his rights were violated, "not every push or shove . . . violates [his] constitutional rights." Id at 9 (citation omitted).
In support of their motion for summary judgment defendants submit declarations and documentary evidence showing the following facts: On September 23, 1999, at around 10:00 a.m., Officers Esparza and Hausmann were releasing inmates in privilege group A1A for their work/education assignments. Officer Welch, the control booth officer, opened the doors of the cells on the top tier of pod B to release A1A inmates. Plaintiff, who was not in group A1A, left his cell and began walking along the tier to the stairs leading to the ground floor common area. Esparza and Hausmann ordered plaintiff to "lock up" and return to his cell, but plaintiff refused, stating that he had to go to the law library.
Officer Hausmann told plaintiff that he was scheduled to leave his cell in the afternoon and that he would get a pass for the law library at that time. Plaintiff continued to refuse to return to his cell, however, insisting that he had a court deadline he had to meet. Plaintiff continued to go down the stairs from the top tier towards the common area.
When plaintiff reached the bottom of the stairs, Officers Esparza and Hausmann ordered him to place his hands on the wall. Plaintiff refused. After repeated orders to place his hands on the wall, plaintiff turned towards the wall, clenched his hands, and placed them on the wall about the level of his stomach. Esparza and Hausmann ordered plaintiff to move his hands above his shoulders or head, as is common practice in the Department of Corrections. Plaintiff refused, and continued being "argumentative," "belligerent and uncooperative," as he kept looking over his right shoulder at Esparza.
Plaintiff continued arguing and began shifting his body from side to side. Officer Hausmann put his right hand on plaintiffs left shoulder to control him and told him to calm down. Plaintiff pushed himself off the wall, spun to his right side and struck Officer Esparza's upper chest and lower chin with his right elbow. This knocked Esparza off balance and he fell to the floor.
While Officer Esparza was falling, he attempted to spray plaintiff with oleoresin capsicum spray, commonly referred to as "O.C. spray" or "pepper spray." (Esparza does not believe that the spray hit plaintiff) Esparza's fall caused him to lose control of the pepper spray, which landed on the ground. Reacting to Esparza's loss of control of the pepper spray, which is considered a weapon, Hausmann placed plaintiff in a "bear hug," but was unable to force him to the ground. When Esparza got up, he grabbed plaintiffs shirt and Hausmann grabbed plaintiffs left leg, causing plaintiff to fall to the ground with the two officers. Plaintiff resisted the entire time, continuing to fight and throw punches, even when on the ground.
Officers Esparza and Hausmann ordered plaintiff to stop fighting and "cuff up." Plaintiff refused. Hausmann attempted to pull plaintiffs right arm behind his back, but could not do so because plaintiff was resisting. Hausmann was nonetheless able to pull plaintiffs left arm behind his back and, when other staff responded, was able to handcuff plaintiff.
The officer defendants and plaintiff were taken to the medical clinic for evaluation and treatment. The registered nurse who examined plaintiff recorded that plaintiff complained of being pepper sprayed in his face and that he denied any other injuries. The nurse noted three superficial abrasions on plaintiffs right elbow and a superficial scrape on plaintiffs left knee. Plaintiffs required no medical treatment.
Under the circumstances described by defendants, force was applied in a good-faith effort to maintain or restore discipline, and not maliciously and sadistically to cause harm: Defendants used force only after plaintiff refused to return to his cell and comply with orders to place his hands on the wall, and after plaintiff struck Officer Esparza and knocked him to the ground; the force used, namely wrestling plaintiff to the ground and holding him there until he could be handcuffed, was not excessive in light of the circumstances; plaintiff suffered no more than a de minimis injury, three superficial abrasions on his right elbow and a superficial scrape on his left knee; defendants reasonably perceived a significant threat after plaintiff refused to comply with orders and struck Officer Esparza, causing him to lose control of his pepper spray canister; and defendants tried temper the severity of a forceful response by repeatedly ordering plaintiff to return to his cell, to face the wall and to "cuff up." See Hudson, 503 US at 6-7.
Plaintiff does not set forth any evidence disputing defendants' version of material facts. Although he alleges in the operative First Amended Complaint that Officer Esparza "pepper sprayed" and punched him, these allegations are insufficient to defeat defendants' motion for summary judgment. Rule 56 makes clear that plaintiff must go beyond the pleadings and, by his own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed R Civ P 56(e). Plaintiffs allegations in the operative complaint will not do because they are not admissible evidence. See id; see also Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir 2002) (district court can only consider admissible evidence in ruling on a motion for summary judgment). The allegations are also largely conclusory. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir 1989) (conclusory allegations insufficient to defeat summary judgment); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir 1988) (same). Although plaintiff alleges that Officer Esparza "pepper sprayed" and punched him, he alleges no facts whatsoever showing that the alleged force was applied maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Defendants are entitled to summary judgment because plaintiff has not met his burden of showing, through evidentiary facts, that there is a genuine issue for trial. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
Plaintiff was advised pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir 1998) (en banc), that to prevent summary judgment in favor of defendants he "must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial." July 12, 2001 Order at 4 (quoting Rand, 154 F.3d at 962-63 (App A)). "If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you." Id.
A verified complaint may be treated as an opposing affidavit under Rule 56 if the plaintiff states under penalty of perjury that its contents are true and correct, and if the allegations are based on personal knowledge. See, e.g., Schroeder v. McDonald, 55 F.3d 454, 460 nn 10-11 (9th Cir 1995). Plaintiff's First Amended Complaint may not be treated as an opposing affidavit under Rule 56 because it is not signed under penalty of perjury. See First Am Compl at 4.
For essentially the same reasons, defendants are also entitled to summary judgment based on their claim of qualified immunity. Cf Jeffers v. Gomez, 267 F.3d 895, 910-12 (9th Cir 2001) (given absence of admissible evidence showing that either officer acted purposely to injure plaintiff and the clearly established law that a prison guard is permitted to use deadly force "in a good faith effort to maintain or restore discipline," both officers' actions in firing their guns in plaintiffs vicinity were neither malicious nor sadistic and therefore the officers were entitled to summary judgment based on qualified immunity).
This conclusion is bolstered by plaintiffs equally unsupported claim of injury. The record only shows that plaintiff suffered minor superficial abrasions and scrapes. Cf Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir 2001) (allegations of injury without medical records or other evidence of injury insufficient to establish excessive force claim under 4th Amendment). Such a de minimis injury strongly suggests a de minimis use of force, not actionable under the Eighth Amendment. See, e.g., Warren v. Westchester County Jail, 106 F. Supp.2d 559, 569 (SDNY 2000) (applying Hudson, 503 US at 9-10). And it forecloses any claim of mental or emotional distress under 42 U.S.C. § 1997e(e). See Oliver v. Keller, No 00-15849, 2002 WL 826893, at *3 (9th Cir May 2, 2002) (physical injury required as a predicate for emotional distress claim under § 1997e(e) must be more than de minimis); Warren, 106 F. Supp.2d at 570 (same).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc #22) is GRANTED.
The Clerk shall enter judgment in favor of defendants, terminate all pending motions and close the file.