Opinion
NO. CIV. S-06-280 LKK/GGH.
August 13, 2008
ORDER
The plaintiff is a former inmate of the Sacramento County Jail who has brought suit under 42 U.S.C. § 1983 for defendants' allegedly illegal conduct in removing him from his cell on January 21, 2006. In the instant motion, all defendants move for summary judgment on all of plaintiff's causes of action.
The court resolves the motion on the papers and after oral argument. For the reasons stated herein, the court grants the motion in part and denies it in part.
I. FACTS
All facts are undisputed unless otherwise indicated.
Defendants object to several pieces of evidence offered by plaintiff in support of his opposition to the motion for summary judgment. Several of these objections raise issues of foundation, which presumably could be cured by plaintiff at trial. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1122 (E.D. Cal. 2006). These objections are therefore OVERRULED.
Defendants also object to the plaintiff's reliance on the declaration of the purported expert Daniel B. Vasquez. According to the court's scheduling order, expert witnesses were required to be designated and their reports filed and served no later than February 22, 2008. Scheduling Order, August 1, 2007, at 5. Plaintiff did not disclose Mr. Vasquez nor file and serve his report by that date; the first document filed in the case identifying Mr. Vasquez and describing his opinions was his declaration in support of plaintiff's opposition to the motion for summary judgment. The plaintiff has not shown that an exception to the deadline is warranted here. See Scheduling Order, August 1, 2007, at 5-6 (providing three criteria that must be met in order for an expert witness who was not timely disclosed on the party's witness list to be permitted to testify at trial). Accordingly, defendants' objection to his declaration is SUSTAINED and the court disregards plaintiff's reliance on it for the purposes of resolving the instant motion. See Fed.R.Civ.P. 37(c).
A. Incident Giving Rise to Plaintiff's Claims
On January 21, 2006, the plaintiff was a pretrial detainee at the Sacramento County Main Jail. Compl. ¶¶ 4, 26. Defendants Cherry, Shelly, Kacalek, Vasquez, and Miller were officers at the jail. Id. ¶¶ 12-16. Defendants Isenogle and Parker were sergeants at the jail and were on duty during the times relevant for plaintiff's complaint. Id. ¶¶ 10-11. Defendant Iwasa was Jail Commander and defendant Blanas was Sheriff of Sacramento County.Id. ¶¶ 6, 8.Defendant's version of the incident is that on that day, the plaintiff was in his cell and had created a disruption. Defendants Cherry, Shelly, Kacalek, Vasquez and Miller entered his cell. Defendant Vasquez took hold of plaintiff's right arm and Kacalek held plaintiff's left arm. Defendant Cherry held plaintiff's feet. Shelly stood behind plaintiff. Defendant Miller has testified that he also stood behind plaintiff, although plaintiff testified that Miller picked him up by the feet, along with defendant Cherry. Declaration of Wendy Motooka in Support of Defendants' Motion for Summary Judgment ("Motooka Decl.") ¶ 7, Ex. F (Deposition of Jason Miller at 30:9-10); Deposition of Javaris Tubbs at 21:14-21:15 (Doc. No. 82-2).
The officers attempted to handcuff plaintiff. Defendant Kacalek testified that plaintiff balled his fists and resisted being handcuffed. Motooka Decl. Ex. A (Deposition of Ryan Kacalek at 24:25-25:6). Defendant Kacalek instructed him to stop resisting and to unclench his fists. Id. According to Kacalek, plaintiff then hit Kacalek's leg with his fist and moved his fist towards Kacalek's groin. Id.; see also id. Ex. E (Deposition of Sonny Vasquez at 35:12-14 (testifying that plaintiff was moving his arms while defendants attempted to subdue him)). The officers then gained control of plaintiff's arm and placed him in a rear wrist lock, which entailed securing plaintiff's arm behind his back, and in an "arm bar" control hold. Id. Ex. A (Deposition of Ryan Kacalek at 25:7-25:14); Ex. E (Deposition of Sonny Vasquez at 35:22-36:19). During this time, defendant Cherry held plaintiff's legs with a "Figure Four hold." Id. Ex. G (Deposition of Mark Cherry at 31:25-32:10).
Plaintiff's version of events differs from defendants'. He has testified that immediately upon entering his cell, the officers picked him up by his limbs and slammed him to the ground. Tubbs Depo. at 21:8-21:15. While officers used "arm techniques" on plaintiff, plaintiff contends that he was in pain and repeatedly asked why the officers were "doing this." Id. at 22:12-22:24. The officers told him that he was resisting and that his fists were balled. Id. at 23:1-23:2. Plaintiff contends, however, that he was not resisting during this time, that his fists were "closed" not balled, and that he never tried to pull his hands away from the officers. Id. at 22:17-23:6.
During this event, the plaintiff's arm was broken. Motooka Decl. Ex. E (Deposition of Sonny Vasquez at 36:23-37:15). The plaintiff testified that one of the officers had twisted his arm until it broke, and that his fists were open at the time. Tubbs Decl. at 23:14-23:22. When it happened, he heard defendant Vasquez say, "I f-ing broke his arm." Id. at 23:25-24:8. He was then handcuffed. Id. at 24:15-24:19; Motooka Decl. Ex. E. After handcuffing him, the officers took the plaintiff to the medical floor.
During the incident, defendant Isengole waited outside the cell and observed what occurred. Motooka Decl. Ex. D (Deposition of Brian Isengole at 44:2-44:9). Defendant Parker also waited outside the cell. Id. Ex. E (Deposition of Sonny Vasquez at 27:10-27:12); Ex. F (Deposition of Jason Miller at 45:1-45:3).
B. Plaintiff's Grievances
On January 24, 2006, the plaintiff submitted a grievance relating to the medical care he received after this incident. In it, he stated that his arm had been injured by a staff member and identified this person as "McMahon." Doc. No. 82-2 at 84. The documents shows that it was received on January 24, 2006 by an officer. Id.
On March 9, 2006, the plaintiff submitted another grievance.Id. at 85. This grievance complained of the officers' force used in the incident on January 21. He identified defendants Vasquez and Kacelek as having "viscously" taken hold of him and "wrenched" his arms behind his back, breaking an arm. Id. He described several unidentified officers as having been involved as well. Id. Finally, he added, "It should be noted that I have twice (2) attempted to submit a grievance on this issue, and on both occasions the grievances were taken by floor officers with no return copy or response." Id. The March 9 grievance form shows that it was received by an officer on March 11, 2006. Id. In the block for the receiving officer's signature there is a notation that reads, "Inmate requested grievance to be forwarded to Facility Commander." Id. Plaintiff testified in his deposition that this grievance may have been his fourth or fifth attempt to submit a grievance regarding the use of force against him during the January 21, 2006 cell removal. Tubbs Depo. at 66:10-66:12.
On March 26, 2006, Lieutenant Richard Anglemoyer responded to the plaintiff's March 9, 2006 grievance. He apologized if the plaintiff did not receive copies of his prior grievances. Doc. No. 82-2 at 87. He stated that the amount of force used against him was "appropriate" based on plaintiff's behavior at the time.Id.
On April 4, 2006, the plaintiff submitted another grievance form that stated that it was intended for the facility commander "in response to a grievance reply that [he] received from Lieutenant Richard Anglemoyer." Id. at 86. In it, the plaintiff complained that Lieutenant Anglemoyer's characterization of plaintiff's behavior on January 21, 2006 was "totally false." Id. There is no evidence tendered to the court that plaintiff received a response to this document.
C. Procedural History
Plaintiff's complaint was filed on February 9, 2006. On February 27, 2007, plaintiff was appointed counsel. After plaintiff filed a second amended complaint, defendants moved for judgment on the pleadings on the grounds that there were insufficient allegations pled against defendants Isengole, Parker, Shelly and McMahon. The court granted the motion with leave to amend. Order, February 27, 2008. Shortly thereafter, plaintiff filed his Fourth Amended Complaint, which the defendants answered.
II. STANDARD FOR SUMMARY JUDGMENT UNDER FEDERAL RULES OF CIVIL PROCEDURE 56
Summary judgment is appropriate when there exists no genuine issue as to any material fact. Such circumstances entitle the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853. In doing so, the opposing party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); see also First Nat'l Bank, 391 U.S. at 289. In evaluating the evidence, the court draws all reasonable inferences from the facts before it in favor of the opposing party. Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); County of Tuolumme v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). Nevertheless, it is the opposing party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).
III. ANALYSIS
Plaintiff alleges two causes of action: (1) excessive use of force during a cell extraction by the individual defendants and (2) municipal and supervisory liability for the same, brought against defendants County of Sacramento, Isengole, Blanas, Parker, and Iwasa. Both claims are pled 42 U.S.C. § 1983.
The plaintiff has abandoned his third and fourth causes of action, relating to the medical care he received at the jail. Defendants' motion is therefore GRANTED as to these claims and as to defendant Glen Douglas, M.D.
For the reasons stated herein, the court grants defendants' motion as to defendants Blanas and Iwasa. The motion is denied as to all other defendants named in the plaintiff's first and second causes of action.
A. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act, an inmate may not bring suit until he has exhausted his administrative remedies. 42 U.S.C. § 1997e; Porter v. Nussle, 534 U.S. 516, 519-20 (2002). Exhaustion occurs when the inmate has fully complied with the grievance procedures of the facility where he is housed.Woodford v. Ngo, 548 U.S. 81, 89-91 (2006). The inmate's grievance need not name all future defendants in order to be adequate. Jones v. Bock, 549 U.S. 199 (2007).
Non-exhaustion is an affirmative defense that the defendant bears the burden to prove. Brown v. Voloff, 422 F.3d 926, 936 (9th Cir. 2005). In order to show non-exhaustion, a defendant could submit such evidence as the regulations or statutes governing the grievance process, testimony from administrators who administer the process, and information provided to prisoners describing the grievance process. Id. at 937. Of these, information provided to the prisoner is especially relevant. Id.
A prisoner only has a duty to exhaust those remedies that are "available" to him. Booth v. Churner, 532 U.S. 731, 736 (2001);Brown, 422 F.3d at 935. "Once there is no further possibility that corrective action [will be] taken in response to an inmate's grievance, there is no hope that the inmate might be satisfied by relief other than that requested." Brown, 422 F.3d at 936 (internal citations omitted). When the inmate has reached this point in the grievance process, his seeking further administrative remedies is both "pointless" and not required by the PLRA. Id. Accordingly, an inmate has no further administrative remedies available to him for exhaustion purposes if, for example, prison officials have told him he could not file a grievance, or the grievance regulations were sufficiently confusing, or the prisoner reasonable misunderstood the grievance system. Id. (citations omitted).
California regulations require county jails to develop procedures to resolve inmate grievances. Cal. Code Regs. Tit. 15 § 1073. These procedures must include (1) a grievance form or instructions for making a grievance; (2) the opportunity to resolve grievances at the lowest appropriate staff level; (3) appeal to the next level of review; (4) written reasons for denial at each level that considers the grievance; (5) reasonable time limits for responding to grievances; and (6) provision for resolving questions of jurisdiction within the facility. Id.
The Sacramento County Main Jail has developed a grievance review system. An inmate first makes an oral grievance to his Housing Floor Officer. Declaration of Brian Isengole In Support of Defendants' Motion for Summary Judgment ("Isengole Decl.") ¶ 14, Ex. B (Main Jail Inmate Handbook). If his problem is not resolved satisfactorily, he can request a grievance form. Id. When the grievance pertains to an incident, the inmate must file his form within ten days of the incident. Id. Grievances are then given to the Housing Floor Officer or mailed to the Facility Commander. Id. Replies are then given to the inmate within fifteen days of the receipt of the grievance form. Id.
As is explained below, the defendants have not met their burden to prove that the plaintiff failed to exhaust his administrative remedies. First, although the plaintiff's grievance regarding the January 21, 2006 incident was not filed within ten days of its occurrence, the plaintiff has presented evidence that he did file earlier grievances regarding the incident, which were ignored. On his March 9, 2006 grievance form, he complained of having attempted twice earlier to file a grievance about the incident, but that those forms were "taken by floor officers with no return copy or response." Doc. No. 82-2 at 85. He reiterated this in his deposition testimony. Tubbs Depo. at 63:11-64:5, 66:1-66:12. When a prison official thwarts an inmate's attempt to timely file a grievance, that thwarting cannot later be used as a defense against the inmate's subsequent suit. Brown, 422 F.3d at 936 (prison official telling an inmate that he could not file a grievance meant that the administrative remedy was effectively unavailable to the inmate). The defendant has not tendered any evidence that the plaintiff did not attempt to file a timely grievance and was thwarted, as he asserts.
Although plaintiff contends that his January 24, 2006 grievance form included a grievance about the force used against him in the January 21, 2006 cell removal, there is some doubt that is a fair characterization. In the January 24 grievance, plaintiff described exclusively the quality of the medical care he received. The only mention of force used against him was the introductory phrase, "My right arm was injured by a staff member (McMahon Badge # 200) on Saturday 1-21-06. . . ." The purpose of the exhaustion requirement is to allow prison officials to address complaints internally and take corrective action. Porter v. Nussle, 534 U.S. 516, 525 (2002). Necessarily, this requires that the grievance contain at least minimal detail so as to put the prison officials on notice of the conditions or incident of which the inmate is complaining. On the other hand, inmates aren't lawyers. Because determination as to whether the January 24 grievance is sufficient is unnecessary to resolution of the motion, it will not be made.
Moreover, according to the evidence of Sacramento County Main Jail's inmate grievance procedure that defendants have tendered to the court, it appears that an inmate at the jail exhausts his administrative remedies simply by filing the grievance form with the proper person in a timely manner. Isengole Decl. Ex. B. The Main Jail Inmate Handbook does not describe an appeals process nor any type of review that an inmate may pursue after receiving a response to his grievance form. Id. Indeed, defendants have tendered no evidence that such a process exists. In sum, defendants have not shown that plaintiff did not exhaust his administrative remedies when he filed his March 9, 2006 grievance form. See Brown, 422 F.3d at 937.
Although plaintiff's claims do not challenge the adequacy of the Sacramento County Main Jail's grievance procedures, the court cannot help but observe that they appear not to comply with California Regulations in several respects. See Cal. Code Regs. Tit. 15 § 1073. Again, because a determination is unnecessary for resolution of the motion, no future consideration is given to the issue.
Even if an appeals process exists, the evidence before the court shows that on April 4, 2006 plaintiff responded to the denial of his grievance. There is no evidence that the jail or its staff responded to this "appeal." When a facility does not respond to an inmate appeal, the inmate must be deemed to have exhausted the available administrative review process. Brown, 422 F.3d at 935; see also Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) ("we refuse to interpret the PLRA `so narrowly as to . . . permit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances'"); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (once prison failed to respond to grievance, no further administrative proceedings were available to prisoner).
B. Excessive Force Claim Against Defendants Cherry, Shelly, Kacalek, Vasquez, Miller, Parker and Isenogle
The Fourth Amendment governs excessive force claims brought by pretrial detainees. Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). A plaintiff's claim fails upon the officers' showing that the force used was "objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. (internal quotations omitted). Summary judgment on these claims "should be granted sparingly," as they often involve competing versions of facts and inferences, the resolution of which is a quintessential jury function. Id. at 415-16 (internal quotations omitted).
Here, the plaintiff has tendered sufficient evidence to show that a jury could find that the officer defendants engaged in excessive force in violation of the Fourth Amendment. There is evidence that defendants Vasquez and Kacalek restrained plaintiff's arms. Motooka Decl. Ex. A (Deposition of Ryan Kacalek at 25:7-25:14); Ex. E (Deposition of Sonny Vasquez at 35:22-36:19). There is evidence that, if credited, tends to show that plaintiff was not resisting or threatening the officers at the time. Tubbs Depo. at 22:17-23:6. Plaintiff also testified that the officers used so much force on his arms so as to cause him great pain and to ultimately break his arm, which was then handcuffed. Id. at 22:12-22:24, 23:25-24:8. A reasonable jury could conclude from these facts that officers Vasquez and Kacalek's actions were objectively unreasonable.
Moreover, a reasonable jury could find that the remaining officers were so integrally involved in the removal of the plaintiff from his cell that they are also liable for the Constitutional violation. "An officer's liability under section 1983 is predicated on his integral participation in the alleged violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 2007). This liability does not depend on each officer's acts rising individually to the level of Constitutional violations. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). For example, in Blankenhorn, the Ninth Circuit held that a reasonable jury could find that officers' use of hobble restraints on the plaintiff violated his Fourth Amendment rights. 485 F.3d at 480. Liability, however, was not restricted to only that officer who had placed the restraint on the plaintiff. The officer who had handcuffed the plaintiff so as to allow the hobble restraints to be placed on him, the officer who ordered the use of hobble restraints, and the officers who "tackled" the plaintiff prior to the application of the restraints all were integral participants in the use of excessive force and therefore also could be liable. Id. at 481 n. 12; see also Boyd, 374 F.3d at 780 (entire group of officers who had participated in a search operation for a suspect in which a "flash-bang" device had been used could be liable as integral participants); Lolli, 351 F.3d at 417 (officers were integral participants in the unlawful beating of plaintiff because they had some physical contact with him during the altercation, including holding him down and spraying him with pepper spray).
Here, the testimony of the individual defendants and the plaintiff suffices to permit a reasonable jury to conclude that defendants Vasquez, Kacalek, Cherry, Shelly, Miller, Isenogle and Parker were integral participants in the use of excessive force against plaintiff. As discussed above, a jury could find that either defendant Vasquez or Kacalek, or both, acted objectively unreasonably in restraining plaintiff's arms. During this time, the remaining officers who held plaintiff (or, if plaintiff's version of events is credited, who slammed him to the ground) could be found to have facilitated this use of force in an integral way. See Tubbs Depo. 21:8-21:15. This circuit's precedent is clear that this type of participation suffices to create section 1983 liability. See Blankenhorn, 485 F.3d at 481, n. 12; Lolli, 351 F.3d at 417.
Although the evidence tendered to the court shows that defendants Shelly, Isenogle and Parker only stood nearby and did not touch plaintiff during the incident, a reasonable jury could find that they were integral participants as well. It is undisputed that defendants Isenogle and Parker did not enter plaintiff's cell and that defendant Shelly entered the cell and stood behind plaintiff. SUF ¶¶ 3, 4, 6. The evidence tendered shows that defendants Isenogle and Parker stood outside the cell and watched what occurred. Motooka Decl. Ex. D (Deposition of Brian Isenogle at 44:2-44:9); Ex. F (Deposition of Jason Miller at 44:18-44:23, 45:1-45:3). A reasonable jury could deduce that these defendants were there to provide back-up to the other officers or they were supervisors and they did not object to the force that was being used against plaintiff during the incident. Both of these factors tend towards a jury's finding that defendants Shelly, Isenogle, and Parker were liable. See Boyd, 374 F.3d at 780 (defendants were integral participants in the use of a flash-bang device for, inter alia, standing armed behind the officer who detonated it and for not objecting to its use).
C. Liability of the County of Sacramento, Blanas and Iwasa
A public entity may only be liable under § 1983 if the constitutional violation occurred as a result of an official municipal policy or custom. Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 691 (1978). A custom that is not official agency policy may create § 1983 liability if it is "permanent and well-settled." Id. An agency may not be liable on a respondeat superior theory, but only if there is evidence that there is "an affirmative link between the policy and the specific constitutional violation alleged." City of Oklahoma v. Tuttle, 471 U.S. 808, 821 (1985). The policy must display a deliberate indifference to the plaintiff's rights, which is usually a jury question. Gibson v. County of Washoe, 290 F.3d 1175, 1194-95 (9th Cir. 2002).
The plaintiff here has tendered evidence that would permit the jury to conclude that there was a policy or practice in place at the Sacramento County Main Jail that was the moving force behind the violation he alleges. He has tendered evidence of the results of an investigation by the District Attorney's office on the use of force against inmates at the Sacramento County Main Jail around the time of the incident of which plaintiff complains. Doc. No. 82-2 at 16-31. This investigation was prompted by the Jail staff's and Sheriff Department's use of force in response to a December 1, 2005 disturbance created by several inmates who had flooded their cells. Id. at 16. The District Attorney concluded that the officers' use of force on that date was not so unreasonable as to be criminal, but that "this case raise[d] significant questions regarding jail operations and the treatment of inmates." Id. at 31. The District Attorney found that "[t]he evidence supports findings of poor judgment by jail staff, lack of administrative supervision and a need to review Operations Orders pertaining to the use of force in the Main Jail." Id. When, as is alleged here, an agency demonstrates a pattern of disregard of official procedures and lack of supervision at the peril of the inmates it is charged to protect, Monell liability may attach. See City of Canton v. Harris, 489 U.S. 378, 389-91 (1989) (where a public entity commits "obvious" errors in performing its function and "the inadequacy [is] so likely to result in the violation of constitutional rights, . . . the policymakers of the city can reasonably be said to have been deliberately indifferent to the need"). Plaintiff's evidence that the County of Sacramento possessed such a pattern shortly before the incident on January 21, 2006 would suffice to allow a reasonable jury to conclude that the County of Sacramento had a "well-settled" pattern of deliberate indifference to inmates' rights vis-a-vis use of force, and that this pattern was the moving force in the violations against the plaintiff. Accordingly, summary judgment must be denied as to the County.
Similarly, summary judgment must also be denied as to defendants Blanas and Iwasa, the Sheriff of Sacramento County and Jail Commander, respectively. Although § 1983 liability will not lie simply on a theory of respondeat superior, Monell v. Dep't of Social Services, 436 U.S. 658, 691-92 (1978), defendants Blanas and Iwasa may be liable if the plaintiff shows that they directed or participated in the violations or knew of their occurrence and failed to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Here, plaintiff has tendered evidence of a policy of inappropriate force, lack of supervision, and failure to adhere to official policies when removing inmates from their cells. These failures, particularly to the extent that they demonstrate a lack of appropriate supervision and training, necessarily implicate defendants Blanas and Iwasa in their management roles. The evidence tendered is sufficient to defeat defendants' Blanas' and Iwasa's summary judgment motions. See Soto v. City of Sacramento, 567 F. Supp. 662, 676 n. 14 (E.D. Cal. 1983).
D. Immunity of Individual Defendants
A government official is immune from liability for discretionary functions, so long as the official's 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 determination of whether or not a state official enjoys qualified immunity proceeds in two parts. First, the court must determine whether the facts show that the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the court undertakes the second step of the analysis, which is whether the constitutional right was "clearly established" at the time of the violation. Id. A right is clearly established if a reasonable official would have understood that his actions violated that right. Id. at 202.
Here, there is evidence sufficient to defeat the defendants' motion for summary judgment on this issue. As explained above, a reasonable jury could conclude that the plaintiff's Fourth Amendment rights were violated in the use of force against him in his cell on January 21, 2006.
If so, a reasonable jury could also find that reasonable officials in the individual defendants' positions would have known that the force used against him in on January 21, 2006 was unlawful. It is a settled principle that the use of excessive force against an inmate violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386 (1989). If a jury were to credit the plaintiff's version of the events that occurred on January 21, 2008, they could conclude that those defendants should have known that the amount of force used against him was beyond that which the situation warranted and therefore was unreasonable. See Blakenhorn, 485 F.3d at 481 (holding that officers enjoyed no qualified immunity because "force is only justified when there is a need for force"). If plaintiff's version is credited, no reasonable officer could believe that it was lawful to take hold an inmate who was not resisting and slam him to the ground, then twist his arm so forcefully that it broke. Accordingly, defendants Cherry, Shelly, Kacalek, Vasquez, Miller, Parker, Isenogle, Iwasa, and Blanas are not entitled to qualified immunity for their participation in the January 21, 2006 removal of the plaintiff from his cell. Their motion for summary judgment is denied.
IV. CONCLUSION
Accordingly, the court orders as follows:
1. Defendants' motion for summary judgment is DENIED on plaintiff's first and second causes of action.
2. The motion is GRANTED as to defendant Douglas.
3. The motion is GRANTED on plaintiff's third and fourth causes of action.
IT IS SO ORDERED.