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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

6 7 MICHAEL HORTON, No. C 17-1915 WHA (PR) 8 Plaintiff, ORDER GRANTING IN PART 9 DEFENDANTS’ SUMMARY v. JUDGMENT MOTION; DENYING 10

PLAINTIFF’S SUMMARY JUDGMENT

J. MOLINA; SERGEANT MOTION; REFERRING CASE TO

11 PARSONS, JUDGE ILLMAN FOR MEDIATION 12 Defendants. (Dkt. Nos. 35, 50, 51)

13 14 INTRODUCTION 15 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action 16 under 42 U.S.C. § 1983 against J. Molina and Sergeant Parsons, two correctional 17 employees at the Department of State Hospitals (“DSH”) facility in Salinas Valley State 18 Prison, where plaintiff was incarcerated at the time of the events described in the 19 complaint. The remaining claims are that Molina used excessive force against plaintiff 20 and retaliated against him for exercising his First Amendment rights, and that Parsons 21 failed to protect him from harm, i.e. Molina’s use of force. 22 Defendants filed a motion for summary judgment on the grounds that plaintiff did 23 not properly exhaust all of his available administrative remedies. That motion was 24 denied. Plaintiff filed a motion for summary judgment, which was denied without 25 prejudice to consideration following mediation proceedings. Magistrate Judge Illman 26 conducted mediation proceedings, but the case did not settle. Defendants filed an 27 opposition to plaintiff’s summary judgment motion and a cross-motion for partial 28 summary judgment. Plaintiff did not file an opposition to defendants’ motion. For the 1 reasons discussed below, plaintiff’s summary judgment motion is DENIED and 2 defendants’ summary judgment motion is DENIED IN PART AND GRANTED IN PART. 3 The case is referred to Magistrate Judge Illman for further mediation proceedings. 4 STATEMENT 5 Plaintiff presents the following account of the events: On September 2, 2015, 6 defendant Molina, a correctional officer, threatened to attack him while they were on the 7 DSH yard, and again while Molina escorted him back to his housing unit. At the 8 housing unit, plaintiff reported the threats to Sergeant Parsons, whom plaintiff alleges 9 was Molina’s supervisor, but Parsons did not take any action. The next day, Molina 10 threatened plaintiff again, and plaintiff complained to Dr. Johnson about the threat. 11 Molina then ordered all inmates on the yard to get on the ground. As plaintiff was 12 lowering himself, Molina hit him, slammed his head into the ground, and ground his 13 knee into plaintiff’s neck. Molina also twisted and “yanked” plaintiff’s arm behind his 14 back, fracturing his elbow. Molina and other officers handcuffed plaintiff and brought 15 him to his cell. Molina slammed plaintiff’s face into his cell window while waiting for 16 the cell door to open, causing plaintiff’s face to bleed “profusely.” 17 Defendants offer a different account of their interaction with plaintiff. According 18 to Molina, on September 2, 2015, he approached plaintiff on the yard because it 19 appeared to Molina that plaintiff was making Dr. Johnson uncomfortable. He told 20 plaintiff to stop talking to Dr. Johnson, and then he and plaintiff argued. Molina 21 handcuffed plaintiff and brought him back to his cell, but he did not threaten to hurt 22 plaintiff. Defendant Parsons states that he was not in fact Molina’s supervisor, and he 23 does not recall speaking to plaintiff that afternoon. 24 Dr. Johnson states that while she was on the yard the next day, plaintiff made 25 inappropriate remarks to her about her appearance and about meeting her outside of the 26 prison. She told him to stop, but he persisted and encroached on the area reserved for 27 staff where she was standing with her back to a wall. Plaintiff also turned to other 28 1 inmates and asked if they agreed with his statements about her appearance. She felt 2 threatened by plaintiff and reported all of this to Molina and other officers. 3 Molina ordered plaintiff to approach, but he walked away. Prison officials issued 4 a general order over the public address system to all inmates in the yard to get down in a 5 prone position, i.e. face down with arms and legs extending outward. Plaintiff initially 6 refused but eventually lay face down with his arms under his body. When Molina and 7 other officers approached, he refused to spread his arms out, put his hands behind his 8 back, or cross his feet, and instead he swore at them. Molina placed his knee on 9 plaintiff’s buttock and his hand on plaintiff’s back, and reached for plaintiff’s right 10 forearm to pull it out for handcuffing. When he did so, plaintiff, who was muscular and 11 strong, tensed his arm and resisted. Molina pulled plaintiff’s arm out with the “minimum 12 force necessary” under the circumstances and put plaintiff’s hand behind his back. 13 Another officer did the same with plaintiff’s left hand while plaintiff resisted, used 14 vulgar language, and refused to obey orders. They put handcuffs on plaintiff, stood him 15 up, and escorted him to his cell, and plaintiff continued to shout obscenities at them. 16 When they arrived at the housing unit, they waited for plaintiff’s cell to be searched. 17 Molina denies banging plaintiff’s head against a wall and states that plaintiff instead 18 banged his own head against a wall several times. Molina denies punching or hitting 19 plaintiff, slamming his head into the ground, or threatening him or any other inmate, and 20 states that plaintiff did not complain about or show any pain. He also states that he did 21 not retaliate against plaintiff. 22 Three other officers who were present for these events filed incident reports that 23 are consistent with Molina’s account, while another officer’s report indicated that 24 plaintiff appeared to cooperate with the handcuffing. 25 Plaintiff sustained a non-displaced fracture of a bone in his right elbow. He 26 received an elbow splint for approximately two months. On November 16, 2015, an x- 27 ray showed that the fracture had healed. Plaintiff received medical examinations for 28 1 right elbow pain four times between May 2016 and April 2018. He did not receive a 2 diagnosis of continued injury. 3 Plaintiff received a Rules Violation Report (“RVR”) against plaintiff for resisting 4 Molina. The disciplinary hearing officer found plaintiff not guilty, however, because the 5 staff reports did not contain sufficient details to find him guilty of the offense. The 6 officer did find that plaintiff had “failed to meet staff expectations.” 7 ANALYSIS 8 I. STANDARD OF REVIEW 9 Summary judgment is proper where the pleadings, discovery and affidavits show 10 that there is "no genuine issue as to any material fact and that the moving party is entitled 11 to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which 12 may affect the outcome of the case. A dispute as to a material fact is genuine if there is 13 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 15 The moving party for summary judgment bears the initial burden of identifying 16 those portions of the pleadings, discovery and affidavi6ts which demonstrate the absence 17 of a genuine issue of material fact. When the moving party has met this burden of 18 production, the nonmoving party must go beyond the pleadings and, by its own affidavits 19 or discovery, set forth specific facts showing that there is a genuine issue for trial. If the 20 nonmoving party fails to produce enough evidence to show a genuine issue of material 21 fact, the moving party wins. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). 22 At summary judgment, the judge must view the evidence in the light most 23 favorable to the nonmoving party: if evidence produced by the moving party conflicts 24 with evidence produced by the nonmoving party, the judge must assume the truth of the 25 evidence set forth by the nonmoving party with respect to that fact. Tolan v. Cotton, 134 26 S. Ct. 1861, 1865 (2014). 27 // 28 1 II. ANALYSIS 2 Plaintiff’s remaining claims are that Molina used excessive force against him in 3 violation of his Eighth Amendment rights, that Molina retaliated against him for the 4 exercise of his First Amendment right to freedom of speech, and that Parsons failed to 5 protect him from Molina’s use of excessive force. To state a claim under 42 U.S.C. § 6 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or 7 laws of the United States was violated, and (2) that the violation was committed by a 8 person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 1. EXCESSIVE FORCE 10 The use of excessive force may amount to the cruel and unusual punishment 11 prohibited by the Eighth Amendment. Whenever prison officials stand accused of using 12 excessive physical force in violation of the Eighth Amendment, the core judicial inquiry 13 is whether force was applied in a good-faith effort to maintain or restore discipline, or 14 maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6 (1992). 15 In conducting that inquiry, a court may evaluate the need for application of force, the 16 relationship between that need and the amount of force used, the extent of injury 17 inflicted, the threat reasonably perceived by the responsible officials, and any efforts 18 made to temper the severity of a forceful response. Id. at 7. 19 The parties do not dispute that Molina used force against plaintiff, but there are 20 clear factual disputes about the material issues of how much force Molina used and how 21 much resistance plaintiff presented; indeed, as defendants put it, their accounts of such 22 matters “differ wildly.” Plaintiff states under oath that after threatening plaintiff over 23 two days, Molina hit him, kneeled on his neck, yanked his arm with enough force to 24 break his elbow, and slammed his head into a cell window while he was handcuffed. 25 Plaintiff also states that he did not resist Molina. Defendants, on the other hand, submit 26 evidence that Molina did not punch or hit plaintiff, that he used the “minimum” force 27 necessary to pull plaintiff’s arm out, and that plaintiff banged his own head against the 28 1 wall. They also assert that plaintiff did not comply with orders to prone out, resisted the 2 handcuffing, and used vulgar and belligerent language against Molina and other staff. 3 Defendants submit reports from three staff members corroborating their account of 4 handcuffing incident, but another official reported that plaintiff cooperated. Defendants’ 5 argument that they did not use excessive force is based solely on their version of events. 6 To be sure, a reasonable fact-finder could believe their account, and if so, find that 7 Molina did not use excessive force to remove plaintiff from the yard to stop him from 8 harassing Dr. Johnson. On the other hand, a reasonable fact-finder could also believe 9 plaintiff’s account and conclude that Molina used sadistic or malicious force in violation 10 of plaintiff’s Eighth Amendment rights. Consequently, neither party may receive 11 summary judgment on the excessive force claim. 12 Defendants also argue that Molina is entitled to qualified immunity. A court 13 considering a claim of qualified immunity must determine whether the plaintiff has 14 alleged the deprivation of an actual constitutional right and whether such right was 15 clearly established such that it would be clear to a reasonable officer that his conduct was 16 unlawful in the situation he confronted. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 17 When considering this argument for purposes of summary judgment, plaintiff’s version 18 of events must be assumed to be true. No reasonable official could believe that he or she 19 could lawfully hit a compliant inmate, slam his head into the ground, kneel on his neck, 20 break his elbow, and later slam his head into a window while he was handcuffed. 21 Consequently, summary judgment is not appropriate on qualified immunity grounds. 22 2. RETALIATION 23 Plaintiff claims that Molina assaulted him to retaliate against him for exercising 24 his First Amendment rights. Within the prison context, a viable claim of First 25 Amendment retaliation entails five basic elements: (1) An assertion that a state actor 26 took some adverse action against an inmate (2) because of (3) that prisoner's protected 27 conduct, and that such action (4) chilled the inmate's exercise of his First Amendment 28 1 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 2 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 3 There is no evidence that plaintiff engaged in any protected speech that caused 4 Molina to assault him. A valid retaliation claim could be based on evidence that 5 defendants retaliated against him for speaking to Dr. Johnson about Molina’s threats or 6 medical issues. There is no such evidence, however. Defendants have presented 7 evidence that plaintiff harassed Dr. Johnson her about her looks and dress, suggested that 8 they would have a sexual contact outside of the prison, persisted in such talk after she 9 told him to stop, and invited other inmates to support his opinions. Plaintiff doe not 10 contradict evidence. Combined with his encroaching into her space, these words caused 11 her to feel threatened. Plaintiff does not have a First Amendment right to engage in 12 harassing or threatening speech, however, and as such it cannot form the basis of a valid 13 retaliation claim. 14 Plaintiff alleges that Molina beat him because plaintiff had “challenged” him the 15 day before. Even assuming that such a challenge constituted protected speech, there is 16 no evidence that was Molina’s motive for forcibly removing plaintiff from the yard. The 17 only evidence of Molina’s motive is Molina’s statement that he removed plaintiff 18 because of plaintiff’s harassment of Dr. Johnson. This statement is corroborated by Dr. 19 Johnson’s sworn statements about the harassment that she reported to Molina. 20 There are no triable factual questions that, if resolved in plaintiff’s favor, would 21 support a viable retaliation claim against Molina. Accordingly, he is entitled to summary 22 judgment on this claim. 23 3. FAILURE TO PROTECT 24 Plaintiff alleges that he told Sergeant Parsons that Molina threatened to hurt him, 25 but Parsons failed to prevent Molina’s assault the next day. The Eighth Amendment’s 26 prohibition of cruel and unusual punishment requires that prison and jail officials take 27 reasonable measures for the safety of inmates, including violence at the hands of other 28 1 inmates or staff members. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). A prison 2 or jail official violates the Eighth Amendment only when two requirements are met: (1) 3 the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, 4 subjectively, deliberately indifferent to the inmate's safety. Id. at 834. To be liable in a 5 failure-to-prevent-harm situation, the official must know of and disregard an excessive 6 risk to inmate safety. Id. at 837. 7 There is no triable issue as to whether Parsons disregarded plaintiff’s allegation 8 that Molina threatened him. Defendants present evidence that Parsons was not in fact 9 Molina’s supervisor, and plaintiff presents no evidence to support his allegation to the 10 contrary. There is no evidence, therefore, that Parsons had the authority to reassign 11 Molina, move plaintiff, or otherwise separate the two. Parsons does not remember 12 speaking to plaintiff, but he does state that if he learned that Molina threatened plaintiff, 13 he would have informed Molina’s supervisor. Plaintiff presents no evidence that Parsons 14 failed to take this step, however, and there is no evidence suggesting any other actions 15 within Parsons’s purview that he failed to take prevent Molina from assaulting plaintiff. 16 As a result, there is no evidence of that Parsons disregarded an excessive risk of harm to 17 plaintiff. 18 There is, moreover, no evidence that Parsons had the requisite state of mind to be 19 liable under the Eighth Amendment. Plaintiff must show that Parsons was deliberately 20 indifferent to his safety, i.e. that he knew of an excessive risk to plaintiff’s safety. See 21 ibid.; cf. Jeffers v. Gomez, 267 F.3d 895, 918 (9th Cir. 2001) (to be liable under the 22 Eighth Amendment for the use of force by subordinate prison guards, a supervisor’s 23 actions — e.g. substandard training, supervision, policy creation — must have resulted 24 from malice, sadism or an intent to cause the inmate harm; no such showing made). In 25 this context, plaintiff must prove that Parsons knew there was an excessive risk that 26 Molina actually made the threat and, if he did, that he would carry it out. Plaintiff’s only 27 evidence on this issue is that he told Parsons that Molina threatened him. Even if this 28 1 was true, there is no evidence that Parsons believed plaintiff that Molina had actually 2 made the threat, or that Parsons had some basis to think there was an excessive risk that 3 Molina would carry out such a threat. Consequently, even looking at the evidence in a 4 light most favorable to plaintiff, there is no triable issue as to whether Parsons knew of 5 an excessive risk of harm to plaintiff’s safety. 6 Parsons is entitled to summary judgment on plaintiff’s Eighth Amendment claim. 7 CONCLUSION 8 For the foregoing reasons, plaintiff’s motion for summary judgment in DENIED. 9 Defendants’ motion for summary judgment is DENIED on plaintiff’s claim against 10 Molina for using excessive force, but the motion is GRANTED on plaintiff’s retaliation 11 claim and on plaintiff’s failure-to-protect claim, discussed above. Defendants’ motion 12 for leave to file an oversized brief is GRANTED until the briefing schedule ordered below 13 is completed. 14 This case is REFERRED to Magistrate Judge Illman pursuant to the Pro Se 15 Prisoner Mediation Program. All further proceedings in this case except are STAYED 16 with the exception of any proceedings related to the mediation ordered below. 17 The mediation proceedings shall take place within 120 days of the date this order 18 is entered. Magistrate Judge Illman shall coordinate a time and date for a mediation 19 proceeding with all interested parties or their representatives and, within five days after 20 the conclusion of the mediation proceedings, file a report. All mediation proceedings 21 shall be confidential and no statement made therein will be admissible in any 22 proceedings in the case, unless the parties otherwise agree. No part of the mediation 23 // 24 // 25 26 27 28 1 proceeding shall be reported, or otherwise recorded, without the consent of the parties, 2 except for any memorialization of a settlement. 3 The clerk shall send a copy of this order to Judge Illman. 4 IT IS SO ORDERED. 5 Dated: December 1 5 , 2020. 6 WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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