May 21, 2002
OPINION AND ORDER
Plaintiff, Michael R. Haynes ("Haynes"), an inmate at the Oregon State Penitentiary (the "OSP"), brings this action pro se pursuant to 42 U.S.C. § 1983. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). This court issued a Summary Judgment Advice Notice on December 4, 2001 (docket #18). Currently before the court is defendants' Motion for Summary Judgment (docket #30). For the reasons that follow, that motion is granted.
SUMMARY OF CLAIMS
This action arises out of a disciplinary hearing conducted on January 12, 2001. In his Second Amended Complaint, Haynes alleges that defendants Timothy Johnson ("Johnson") and David Prinslow ("Prinslow"), both OSP Correctional Officers, unreasonably "plowed into" and restrained Haynes at the conclusion of this hearing while he was handcuffed. In summary, Haynes asserts that: (1) Johnson used excessive force and restricted Haynes from exiting the hearings room in violation of the Eighth and Fourteenth Amendments (Claims One and Two); (2) Prinslow restrained Haynes while Hearings Officer Barbara Cooney ("Cooney") (formerly Atterbury) hit him over the head with a stainless steel cup, restricted him from exiting the hearings room, and perpetuated his injures by radioing for assistance in violation of the First, Eighth, and Fourteenth Amendments (Claims Three and Four); (3) Prinslow caused Haynes mental anguish on January 17, 2001, when he told him to keep his mouth shut or it would get worse in violation of the First and Fourteenth Amendments (Claim Five); (4) Prinslow prohibited Haynes from attending a January 26, 2001 disciplinary administrative hearing in violation of the First and Fourteenth Amendments (Claim Six); (5) Prinslow falsified reports relating to the January 12, 2001 incident in violation of the First, Eighth, and Fourteenth Amendments (Claim Seven); (6) defendant OSP Superintendent S.W. Czneriak ("Czneriak") failed to provide legible copies of documents to Haynes on February 10, 2001, and failed to initiate a federal investigation of organized criminal activity, hate crimes, and/or malfeasance involving Oregon Department of Corrections ("ODOC") employees in violation of the Fourteenth Amendment (Claims Eight and Nine); and (7) defendant OSP Assistant Superintendent Rebecca Prinslow destroyed and/or altered records of the January 1, 2001 hate crime, January 12, 2001 assault, and complaints filed with the superintendent's office (Claim Ten). As a result, Haynes seeks $10 million, an order for a federal investigation, and costs.
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied, 493 U.S. 809 (1989), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir. 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert denied, 484 U.S. 1006 (1988).
Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Haynes. A review of the parties' statements of fact, as well as the other materials submitted by the parties, reveals the following.
I. Disciplinary Hearing
On January 3, 2001, Haynes appeared before Cooney for charges of Assault I at a disciplinary hearing held in the Disciplinary Segregation Unit ("DSU"). Affidavit of Barbara Cooney ("Cooney Aff"), Defs' Ex 101, ¶ 2. DSU hearings rooms are 12 feet long and 8 feet wide, and contain a desk with a computer monitor and chairs. Id at ¶ 3. Due to a need for further investigation, the hearing was continued. Id at ¶ 2.
During the second hearing on January 12, 2001, Haynes' hands were cuffed behind him and he was escorted by Johnson and Prinslow. Id at ¶ 4. Haynes was seated behind a desk across from Cooney. Id at ¶ 5. Prinslow stood to the right of Cooney and Johnson stood in the doorway. Id at ¶ 4. Cooney concluded that Haynes committed the lesser offense of Assault II. Id at ¶ 5. She advised Haynes of the findings and told him of the sanctions that she would be recommending to the Superintendent. Id. Cooney turned her attention to the paperwork on her desk and Haynes rose to be escorted from the hearings room. Id at ¶ 6.
To the extent that there is a dispute of fact, Haynes' statements are assumed as true for purposes of this motion.
While standing at the desk opposite where Cooney was seated, Haynes told Cooney that he intended to bring federal charges against her for violating his rights. Plaintiff's Concise Factual Response to Defendants' Concise Statement of Facts in Support of Summary Judgment ("Pltf's Facts II"), ¶ 7. In response, Cooney charged over her desk screaming "how dare you disrespect my court?" Id. Haynes then attempted to jump up on the desk and kick Cooney in the head. Plaintiff's Statement of Facts in Deny Defendants' Motion for Summary Judgment and on [illegible] Their Facts ("Pltf's Facts I"), ¶ 7; Cooney Aff, Attach 4, p. 2.
Prinslow struggled to contain Haynes, and Cooney kneeled on top of the desk and began assaulting Haynes with a stainless steel cup. Pltf's Facts I, ¶ 8. Meanwhile, Johnson rushed from the doorway and knocked Haynes and Prinslow to the floor. Id. As Cooney got down from the desk, she lost her balance and caused the computer to fall to the floor, breaking the monitor. Id.
Other corrections officers arrived to assist in subduing Haynes. Cooney Aff, Attach 4, pp. 13, 17. After an escort hold failed, leg restraints were used and Haynes was four point carried to the Disciplinary Segregation Unit ("DSU") intake area. Id at 9-11, 13-17. There, Angela Sly, RN ("Sly"), examined Haynes and determined that he did not require any treatment. Id at 18. Haynes was then four point carried to a new cell. Id at 9-17. Once in the cell, his clothing was removed, he was checked for further injury, and photographs were taken of all visible injuries. Id at 10, 13-14. The restraints were removed without further incident. Id.
Even though Haynes never kicked Cooney, she sustained injuries to her right forearm and wrist and the bridge of her nose. Pltf's Facts I, ¶ 7; Cooney Aff, ¶ 8. Others observed that Cooney had a red mark on the bridge of her nose. Cooney Aff, Attach 4, p. 12. Sly examined Cooney and found no treatment was necessary, but Cooney subsequently sought medical attention at the Urgent Care Center at Salem Hospital. Id at 12, 14, 22.
As a result of this incident and for preventative measures, OSP modified the physical layout of the hearings room to prevent the risk of future assaults on hearings staff. Cooney Aff, ¶ 15. Inmates are now contained inside a holding cell during their disciplinary hearings. Id.
III. Subsequent Disciplinary Hearings
On January 17, 2001, Haynes appeared before Hearings Officer D. Goldade ("Goldade") and denied the four charges stemming from the January 12, 2001 incident: (1) Assault I; (2) Disrespect I; (3) Disobedience of an Order I; and (4) Disturbance. Cooney Aff, Attach 5, pp. 1-2. Goldade found Haynes guilty of Assault I and Disturbance; however, Disrespect I was merged with Assault I and the evidence was insufficient to substantiate a charge of Disobedience of an Order I. Id at 2. For Assault I, Haynes was sanctioned to segregation for 120 days, ordered to pay ODOC $200, and received a 28-day Loss of Privileges penalty. Id. For Disturbance, Haynes was sanctioned to segregation for an additional 18 days. Id.
On January 17, 2001, Prinslow told Haynes to "keep [your] mouth shut or it could get worse for [you]." Second Amended Complaint, Claim V. Prinslow also said "far worse phrases . . . [of] pure hatred for plaintiff. . . ." Pltf's Facts I, ¶ 18.
On January 26, 2001, Goldade held a second hearing by telephone for charges against Haynes for damaging state property on January 12, 2001, including a computer monitor valued at $131.68, a dictaphone valued at $59.80, and a stainless steel coffee cup valued at $12.99. Cooney Aff, Attach 6, p. 1. Goldade notes that the hearing was held in "absentia," and that Haynes shook his head "no" when Prinslow went to retrieve him for the hearing. Id at 1, 3. Haynes disputes this and states that he did not shake his head. Pltf's Facts I, ¶ 19. In Haynes' absence, Goldade imposed $204.47 in restitution. Cooney Aff, Attach 6, p. 1.
Haynes' filed grievances relating to the January 12, 2001 events, but they were rejected and returned for failure to comply with ODOC grievance procedures. Affidavit of Michael W. Dodson ("Dodson Aff"), Defs' Ex 108, ¶ 2. He did not resubmit any grievances relating to this incident. Id at ¶ 3. Additionally, Haynes failed to follow the "Administrative Review" procedures outlined in OAR 291-105-0073, which provides as follows:
(2) Petitions for administrative review must be filed by the inmate with the Inspector General within 30 calendar days after the Final Order is signed by the functional unit manager. . . . Petitions for administrative review shall minimally contain:
(a) A copy of the Misconduct Report; and
(b) A copy of the hearings officer's written Finding of Fact, Conclusions and Order.
Affidavit of Les Dolecal ("Dolecal Aff"), Defs' Ex 107, ¶¶ 2-3.
Haynes claims that he sought administrative review of the disciplinary actions relating to the January 12, 2001 incident and received a response dated February 1, 2002. Pltf's Facts I, ¶¶ 17, 20. However, defendants have no record that Haynes requested review of the Findings, Conclusion and Order in the two disciplinary actions. Dolecal Aff, ¶ 3.
V. Medical Records
On January 17, 2001, Haynes complained that his eyeglasses were damaged during an "inmate assault on staff." Affidavit of William Cahal, RN ("Cahal Aff"), Defs' Ex 102, ¶ 6. His frames were straightened and he did not complain of any physical or emotional pain. Id. In February 2001, Haynes was prescribed antibiotics for a "possible infection" of his right elbow which he injured when he fell on approximately January 6, 2001. Id at ¶¶ 8-10. He did not report any injury relating to the January 12, 2001 incident nor did he complain of other physical or emotional pain stemming from that incident. Id at ¶ 10.
On July 4, 2001, Haynes complained of sleep deprivation and wool allergy. Id at ¶ 11. He did not mention any physical or emotional pain stemming from the January 12, 2001 incident. In fact, from January 2001 through January 2002, Haynes did not once advance any complaints of physical or emotional anguish relating to the January 12, 2001 incident. Id at ¶¶ 21, 23. Haynes now claims that the January 12, 2001 incident caused his sleep deprivation. Pltf's Facts I, ¶ 10.
VI. Czerniak and Rebecca Prinslow
On January 31, 2001, Czerniak became Superintendent of OSP. Affidavit of Stan Czerniak ("Czerniak Aff"), Defs' Ex 105, ¶ 1. Two weeks later, on February 10, 2001, Haynes orally requested that Czerniak provide him with legible copies of all reports and/or memoranda likely related to ODOC staff malfeasance and an alleged coverup relating to a January 1, 2001 hate crime which he failed to report to the FBI. Pltf's Facts I, ¶ 21; Czerniak Aff, ¶¶ 2-6. Haynes never made this request in writing. Czerniak Aff, ¶ 4. Czerniak now cannot remember this request and finds it "puzzling." Id at ¶ 7.
Until mid-April 2001, Rebecca Prinslow was assigned to the Oregon Women's Correctional Center; she since has held the position of Assistant Superintendent General Services at OSP. Affidavit of Rebecca Prinslow ("R. Prinslow Aff"), Defs' Ex 106, ¶¶ 1, 3. Haynes claims that in April 2001, Rebecca Prinslow willfully destroyed and/or altered records relating to ODOC staff malfeasance relating to organized criminal activity and a hate crime that occurred on January 1, 2001. Second Amended Complaint, Claim X. This allegation "baffles" her and she does not recall ever communicating about it with Haynes. R. Prinslow Aff, ¶¶ 2, 3, 6.
DISCUSSION I. Exhaustion of Administrative Remedies
Defendants first assert that Haynes' claims are barred for failure to exhaust administrative remedies. While Haynes never filed an appeal or review of his claims against Czerniak and Rebecca Prinslow, he attempted to file grievances relating to the January 12, 2001, incident. Haynes now argues that this unsuccessful attempt should be enough.
A. Legal Standard
The Prison Litigation Reform Act (the "PLRA"), 42 U.S.C. § 1997(e)(a), provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This exhaustion provision requires a prisoner to complete any prison administrative process capable of addressing his complaint and providing some form of relief, even if the grievance process does not provide the relief that the prisoner is seeking, such as monetary relief. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (2002) (holding that the PLRA's exhaustion requirement applies to all inmate suits about prison life, including excessive force claims under § 1983).
In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court addressed the exhaustion requirement in prisoner civil rights cases. There, an inmate filed a complaint alleging excessive force, but did not exhaust his available administrative remedies on the basis that those remedies did not allow the recovery of monetary damages. Id at 735. The Supreme Court held that an administrative remedy is sufficient if it provides some relief, even if the remedy offered falls short of the remedy plaintiff seeks. Id at 741. The Court noted "that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Id.
Haynes' claims appear to fall into two general categories, including: (1) those that relate to the January 12, 2001 incident (Claims One, Two, Three, and Four); and (2) all other claims (Claims Five, Six, Seven, Eight, Nine, and Ten).
The Ninth Circuit has held that the exhaustion requirement in prisoner civil rights cases is an affirmative defense. Wyatt v. Terhune, 280 F.3d 1238, 1246 (9th Cir. 2002). Thus, if defendants fail to raise this defense, it is waived. In their Answer and Affirmative Defenses ("Answer") (docket #15), "[d]efendants assert all provisions of the Prison Litigation Reform Act" (¶ 11). Although defendants do not specifically allege that Haynes failed to exhaust his administrative remedies, their reference to the PLRA sufficiently preserves this defense.
1. Other Claims (Claims Five-Ten)
There is no evidence that Haynes filed or attempted to file grievances against Prinslow for: (1) telling Haynes on January 17, 2001, to keep his mouth shut (Claim Five); (2) prohibiting Haynes from attending a January 26, 2001, disciplinary administrative hearing (Claim Six); or (3) falsifying a report (Claim Seven). Nor is there any evidence that Haynes filed or attempted to file grievances against either Czerniak (Claims Eight and Nine) or Rebecca Prinslow (Claim Ten).
Even if Haynes did exhaust this claim, it is well-settled that threats made by prison guards do not state a constitutional claim. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (holding that a "mere naked threat" is insufficient because it "trivializes the eighth amendment to believe a threat constitutes a constitutional wrong").
The PLRA specifically precludes Haynes from bringing claims that have not been administratively exhausted in federal court against these defendants. 42 U.S.C. § 1997e(a). Accordingly, Claims Five through Ten against defendants Prinslow, Czerniak, and Rebecca Prinslow, and Haynes' related request for declaratory relief are dismissed for failure to exhaust.
2. January 12, 2001 Incident (Claims One, Two, Three, and Four)
There is some evidence that Haynes filed grievances in an attempt to seek administrative review of the disciplinary actions relating to the events on January 12, 2001. However, these were rejected and returned for failure to comply with ODOC grievance procedures. Dodson Aff, ¶ 2. Haynes never resubmitted any request for administrative review and failed to follow the "Administrative Review" procedures outlined in OAR 291-105-0073. Meanwhile, Haynes argues that he exhausted to the best of his ability. Plaintiff's Motion to Deny Defendants' Motion for Summary Judgment (Memorandum in Support) ("Pltf's Response"), p. 2.
Defendants do not specifically allege in their Answer how Haynes has failed to exhaust his administrative remedies. Thus, this court will assume, without deciding, that Haynes' unsuccessful attempt to appeal satisfies the exhaustion requirement. Nevertheless, as discussed below, summary judgment remains appropriate.
II. No Excessive Force or Physical Harm
With respect to Claims One through Four, which relate to the January 12, 2001 incident, Haynes alleges that Johnson and Prinslow used excessive force, restricted him from exiting the hearing room, and perpetuated his injuries by involving other OSP personnel in violation of the First, Eighth, and Fourteenth Amendments. Defendants assert that the security of the institution was the primary motivating factor for defendants' actions, that Johnson and Prinslow's response was reasonable, and that the harm was de minimis.
An excessive force claim violates the Eighth Amendment, not the First and Fourteenth Amendments.
A. Legal Standard
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishment 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 threat `reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response.'" Id at 7 (internal citation omitted); LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993).
An Eighth Amendment excessive force claim requires that a plaintiff show more than a de minimis use of force and while a prisoner may believe that his rights have been violated, "[n]ot every push or shove . . . violates a prisoner's constitutional rights." Hudson, 503 U.S. at 9-10 (internal quotation and citation omitted). The Ninth Circuit recently held that recovery for mental or emotional injury "requires a prior showing of physical injury that need not be significant but must be more than de minimis." Oliver v. Keller, 2002 WL 826893, *3 (9th Cir. 2002) (holding that a painful canker sore and back and leg pain are de minimis and, in the absence of any further description of physical injuries, will not support a claim for mental or emotional injury under the PLRA).
Accepting Haynes' version of the facts, as the court must at this stage, the uncontroverted evidence shows that Johnson and Prinslow applied force in a "good-faith effort to maintain or restore discipline." Hudson, 503 U.S. at 7. After careful consideration of all the circumstances surrounding the January 12, 2001 incident, there is no evidence that any force was excessive or applied "maliciously and sadistically to cause harm." Id.
Even though handcuffed, Haynes admittedly attempted to kick a hearings officer in the face. Although Haynes claims that Cooney provoked the attack, he precipitated an obviously dangerous situation. Johnson and Prinslow responded as any reasonable corrections officer would in similar circumstances in restraining and preventing Haynes from attacking Cooney.
That the force used was reasonable is evident from the extent of injury inflicted. Importantly, Haynes fails to allege any physical injury as a result of the use of force. Yet, in response to defendants' motion, Haynes now alleges that his injuries include sleep deprivation, as evidenced by his medical records, and physical and emotional pain, as evidenced by the photographs. Pltf's Response, p. 2. Other than very minor abrasions on both knees, it is difficult to see any physical injury depicted in the photographs. Cooney Aff, Attach 8. Moreover, Sly notes no medical treatment was necessary, and Haynes never complained of any physical pain resulting from the incident. In similar circumstances involving prison discipline, courts have rejected excessive force claims. See Boddie v. Schnieder, 105 F.3d 857, 861 (2nd Cir. 1997) (bumping, grabbing, elbowing, and pushing plaintiff do not approach an Eighth Amendment claim); Turner v. Contra Costa County, 1997 WL 765951, *1-2 (N.D. Cal 1997) (shoving an inmate because he is not moving fast enough does not amount to an Eighth Amendment violation); Jackson v. D.D. Hurley, 1993 WL 515688, *2 (N.D. Cal 1993) (striking plaintiff in the back of the neck and kicking his ankle is merely a de minimis use of force); Olson v. Coleman, 804 F. Supp. 148, 150 (D Kansas 1992) (holding that a single blow to the back of the head while prisoner was handcuffed during transport does not constitute excessive force).
In summary, based on the evidence submitted by the parties, Haynes has failed to establish a genuine issue of material fact with respect to Johnson and Prinslow's alleged use of excessive force. There is no evidence that Johnson and Prinslow acted maliciously and sadistically for the very purpose of causing harm. Rather, the record establishes that they applied force in a good-faith effort to restore discipline and maintain jail security and that the injury inflicted was minor. Accordingly, defendants are entitled to summary judgment on all claims relating to the January 12, 2001 incident.
For the reasons stated above, defendants' Motion for Summary Judgment (docket #30) is granted.