Free Reply to Response to Motion - District Court of Arizona - Arizona

Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-7323 Facsimile No.: (602) 200-7811 E-Mail: [email protected] [email protected] Attorneys for Defendants Kimberly Mendivil, John Keesling, Michael Greene, Frank Lane, Corrections Corporation of America, Florence Correctional Center and Richard Smelser UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Allen P. Branco NO. CIV 04-593 PHX-SMM (GEE) Plaintiff, v. Corrections Corporation of America; Florence Correctional Center; Warden Richard Smelser; Medical Unit of Florence Correctional Center; Corrections Officer M andavile Nurse Frank Lane Defendants., Defendant Smelser, through counsel, hereby submits his Reply in Support of Motion for Summary Judgment. Plaintiff, an inmate, claims that Defendant Assistant Warden Smelser violated his constitutional rights when a control room correctional officer closed a security gate on his ankle. Plaintiff has no evidence that Defendant Smelser witnessed the incident, let alone, ordered a correctional officer to close the gate on his foot. Defendant Smelser hereby joins in Defendants M endivil, Keesling, Greene, Lane, Corrections Corporation of America and Florence Correctional Center's Motion for Summary Judgment previously filed on March 2, 2005, and the Reply filed on May DEFENDANT SMELSER'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 2:04-cv-00593-SMM-GEE

Document 130

Filed 11/18/2005

Page 1 of 11

5, 2005. In addition to those arguments asserted by Defendants Mendivil, Keesling, Greene, Lane, Corrections Corporation of America and Florence Correctional Center, Defendant Smelser is also entitled to summary judgment for the reasons that: (1) Plaintiff cannot establish a 42 U.S.C. § 1983 supervisory liability claim against Defendant Smelser; (2) Plaintiff cannot establish more than de minimis physical injury, thereby precluding both Plaintiff's constitutional violation claim and his emotional distress claim; and (3) Plaintiff fails to establish the necessary elements to proceed on his punitive damages claim against Defendant Smelser. This Reply is supported by the following Memorandum of Points and Authorities, previously filed Motion For Summary Judgment and Statement of Facts filed by Defendants Mendivil, Keesling, Greene, Lane, Corrections Corporation of America and Florence Correctional Center, as well as Defendant Smelser's separately filed Statement of Facts, Defendant Smelser's Objections to Plaintiff's Statement of Facts and all pleadings filed herein. MEM ORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff's sole claim against Defendant Smelser, an Assistant Warden at Corrections Corporation of America's Central Arizona Detention Center, is that as a supervisor, Defendant Smelser is liable under 42 U.S.C. § 1983, because: (1) "[i]ncidents of misuse by Crash Gate Operator's was common and frequent, and initiated to fusterate [sic], harass and punish inmates"; (2) Defendant Smelser witnessed several of these incidents; and (3) Defendant Smelser "failed to correct and prevent similar incidents from reoccurring thereby encouraged these incidents to continue." Plaintiff's Response to Defendant Smelser's Motion for Summary Judgment at A-2. Plaintiff, however, has no evidence beyond unsupported, self

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serving allegations, that these "prior incidents" even occurred. Moreover, Plaintiff seeks to bolster this argument by stating that Defendant Keesling and Correctional Officer Crewse have admitted to witnessing "numerous incidents", citing Keesling and Crewse' affidavits submitted by Defendants. Keesling and Crewse' affidavits are to the contrary and do not at all intimate or state that they have witnessed prior incidents of anyone closing a security gate on inmates. See DSOF (filed 3/2/05), Exh. 6 and Exh. 5. In short, Plaintiff's misconstruction of the record, and own self serving statements unsupported by any evidence, fail to create a genuine issue of material fact to defeat summary judgment. The following evidence is undisputed. Inmates are warned not to pass through a gate when it is in operation. Smelser DSOF at ¶ 10-12, 29. Plaintiff admits he saw these warnings. Defendants' DSOF filed 3/2/05 at ¶ 31-32. It is also undisputed that the word "crash" in crash gate means nothing. It takes 12 seconds for the security gates to open or close. Smelser DSOF at ¶ 7; Videotape of gate operation submitted as Exh. 1 to Defendants' Reply in Support of Motion for Summary Judgment filed 5/5/05. A person of normal strength can push a moving gate away from him. Smelser DSOF at ¶12; Videotape of gate operation submitted as Exh. 1 to Defendants' Reply in Support of Motion for Summary Judgment filed 5/5/05. In order for a person to get caught in the gate, he or she would have to enter the gate with only 12 - 18 inches of clearance remaining, a clear violation of the posted order that warns individuals not to enter when the gate is in operation. Smelser DSOF, ¶ 13. Moreover, it is visibly and auditorily obvious to inmates that a security gate is in operation. Smelser DSOF, ¶ 28; Videotape of gate operation submitted as Exh. 1 to Defendants' Reply in Support of Motion for Summary Judgment filed 5/5/05. Thus, if an inmate is injured by a security gate, it is because

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he either stood in the gateway waiting for the gate to make contact with him, or attempted to slip through the gate while it was closing, both clear violations of the posted warnings. CCA provides training that is state of the art and is continually being revised to ensure that FCC employees receive the best training available. Smelser DSOF, ¶ 14. In addition to general corrections training, correctional officers who operate the security gates receive specific training in the operation of the gates. Smelser DSOF, ¶ 14. The additional training provided to control officers is eight hours. Smelser DSOF, ¶ 15. The instructions follow the operating procedures outlined in the technical training manual. Smelser DSOF, ¶ 15. The control officers, who simultaneously work the facility's fourteen (14) security gates as well as all internal external doors to the facility do not have direct sight of the D Unit gate. Smelser DSOF at ¶ 3,8-9. Rather, the gates are operated electronically, from a remote location. Smelser DSOF at ¶ 9. Plaintiff has no evidence to establish that Defendant Smelser promulgated a custom, policy or practice of permitting correctional officers to deliberately close security gates on inmates for the sole purpose of causing injury to inmates. Specifically, Defendant Smelser was not personally involved in training correctional officers at FCC regarding the operation of security gates. Smelser DSOF, ¶ 16. Moreover, Defendant Smelser is not aware of any instances at FCC where correctional officers deliberately closed security gates on inmates for the purpose of punishment, harassment or causing inmates harm. Smelser DSOF, ¶ 21. Defendant Smelser is also not aware of any instances prior to October 28, 2003, in which in inmate was injured by a closing security gate. Smelser DSOF, ¶ 22. Furthermore, Defendant Smelser did not direct or condone correctional officers' misuse security

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gates for the purpose of harassment or punishment of inmates. Smelser DSOF, ¶ 23. Finally, Defendant Smelser did not order Officer Mendivil to deliberately close a security gate on inmate Branco for the purpose of causing him harm. Smelser DSOF, ¶ 24. Defendant Smelser also did not order or condone correctional officers to deliberately fail to warn inmates of gate operation. Smelser DSOF, ¶ 27. II. BECAUSE PLAINTIFF CANNOT ESTABLISH AN UNDERLYING CONSTITUTIONAL VIOLATION BY DEFENDANT MENDIVIL WITH RESPECT TO GATE OPERATION, PLAINTIFF'S SUPERVISORY LIABILITY CLAIM AGAINST DEFENDANT SMELSER AUTOM ATICALLY FAILS. As a predicate for asserting liability against Assistant W arden Smelser in this 42 U.S.C. § 1983 action, Plaintiff must first prove an underlying constitutional violation by Smelser's subordinates. See City of Los Angeles v. Heller, 175 U.S. 796, 799, 106 S.Ct. 1571 (1986); Quintanilla v. City of Downey, 84 F.3d 353, 355 (9 th Cir. 1996). Here, Plaintiff must first show that Defendant Mendivil violated Plaintiff's constitutional rights by deliberately closing the security gate on Plaintiff for the purpose of punishing Plaintiff, causing Plaintiff to suffer more than de minimis injury. Only then may Plaintiff assert a Section 1983 supervisory liability claim against Defendant Smelser. As set forth in Defendants' Motion for Summary Judgment filed March 2, 2005, as well as Defendants' Reply in Support of Motion for Summary Judgment filed May 5, 2005, Plaintiff cannot establish that control room officer Defendant Mendivil violated Plaintiff's constitutional rights because: (1) Plaintiff has no evidence that Defendant Mendivil deliberately closed the security gate on Plaintiff's ankle; and (2) Plaintiff cannot prove he suffered more than de minimis injury as a result. This Court should therefore grant summary judgment in favor of Defendant Smelser. Defendant Smelser specifically joins in and incorporates all arguments

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asserted by Defendants Mendivil, Keesling, Greene, Lane, Corrections Corporation of America and Florence Correctional Center in their Motion for Summary Judgment filed 3/2/05 and the accompanying Reply filed 5/5/05. III. PLAINTIFF CANNOT PROVE THAT DEFENDANT SMELSER WAS DELIBERATELY INDIFFERENT IN THE TRAINING OR SUPERVISION OF HIS SUBORDINATES IN SECURITY GATE OPERATION.1 Under 42 U.S.C. § 1983, "[a] supervisor is only liable for the constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9 th Cir. 1989); Larez v. City of Las Angeles, 946 F.2d 630 (9 th Cir. 1991); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9 th Cir. 1984). Consequently, a supervisor can only be personally liable for his "own culpable action or inaction in the training, supervision, or control of his subordinates," in violation of, or in callous disregard for the rights of others. Larez v. City of Los Angeles, 946 F.2d 630 (9 th Cir. 1991). Mere negligence in supervision is not enough to impose liability. Instead, to be actionable under § 1983, a supervisor's failure to adequately supervise or train must

1

Plaintiff also argues in his Response, that Defendant Smelser interfered with and delayed the medical treatment for his resulting ankle injury and furthermore alleges that Smelser conducted a shoddy grievance investigation regarding the incident. The Court, in screening Plaintiff's Second Amended Complaint, found only that Plaintiff properly alleged a supervisory liability claim with regards to failure to train regarding gate operation. See Order dated 2/7/05 at 3. Nor does Plaintiff's Second Amended Complaint set forth these additional allegations as against Defendant Smelser. Accordingly, these additional allegations of wrongdoing are not addressed by this Reply and Plaintiff cannot create new causes of action against Smelser by making such arguments for the first time in his Response to Defendant Smelser's Motion for Summary Judgment. 6 Case 2:04-cv-00593-SMM-GEE Document 130 Filed 11/18/2005 Page 6 of 11

rise to the level of "deliberate indifference" to the rights of others. See City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197 (1989). Plaintiff must also establish that the "deliberate indifference" actually caused the alleged use of excessive force. See Redman v. County of San Diego, 942 F.2d 1435, 1435, 1446 (9th Cir. 1991), cert. denied, 502 U.S. 1074 (1992). Finally, Plaintiff must prove an overreaching failure to train an entire department, resulting in the constitutional violation claimed by Plaintiff. See, e.g., Otani v. City and County of Hawaii, 126 F.Supp. 2d 1299 (D. Haw. 1998). A failure to train case based solely on the actions of a single officer will not suffice. See id. Mere allegations, unsupported by evidence, are insufficient to establish a genuine issue of material fact for summary judgment purposes. See Moreland v. Las Vegas Metropolitan Police Department, 159 F.3d 365, 374 (9 th Cir. 1998); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9 th Cir. 1975). Moreover, a finding of liability in a constitutional violation case requires a plaintiff to establish that he suffered specific injury as a result of the specific conduct of a defendant, and show an affirmative link between the injury and the conduct of the defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S.Ct. 598, 604-05, 607 (1976). In this case, Plaintiff is unable to establish any of the necessary elements to succeed on a Section 1983 supervisory liability claim against Defendant Smelser. First, Plaintiff has no competent evidence that Defendant Smelser ordered Defendant Officer Mendivil to close the security gate on Plaintiff for the purpose of causing him harm. To the contrary, Defendant Smelser was not even in the control room where Officer Mendivil was operating the security gates. Second, Plaintiff also has no evidence that Defendant Smelser ordered or otherwise condoned

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deliberate closing of security gates on inmates by control room officers (if such "crash closing" was even possible, which it is not, as illustrated by the Videotape of gate operation produced as Exhibit 1 to Defendants' Reply in Support of Motion for Summary Judgement filed 5/5/05). Third, Plaintiff fails to support his allegation that Defendant Smelser knew of deliberate gate closings causing harm to inmates but did nothing to stop such practices with any competent evidence. In sum, Plaintiff's unsupported allegations that Defendant Smelser was aware of other inmate vs. security gate occurrences lack any indicia of reliability. Defendant Smelser specifically denies that he was aware of prior incidents of officers closing security gates on inmates. See Smelser SOF at ¶ 21-22. Moreover, Plaintiff cannot even say when such "other incidents" occurred, at which gates they occurred, how many times such instances occurred or who was involved. Because Plaintiff is unable to establish that Defendant Smelser personally participated in or directed control room officers, including Officer Mendivil, to deliberately close the D-Unit security gate on Plaintiff's ankle, Plaintiff cannot establish the necessary causal connection as required by Rizzo. Next, Plaintiff's supervisory liability claim fails as against Defendant Smelser because Plaintiff has no evidence that Assistant Warden Smelser trained or failed to train correctional officers in the safe and correct manner of gate operation. It is undisputed that Defendant Smelser was not involved in control room officer training. Even though Defendant Smelser was not involved, there was no lack of appropriate training. Inmates are warned not to enter moving gates by signs placed next to the gates. Moreover, CCA provides training that is state of the art and is continually being revised to ensure that FCC employees receive the best training available. This is not a situation where CCA (and Defendant Smelser even if he

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were involved) failed to provide its officers any training in the operation of security gates. And, in this case specific or extensive training hardly seems necessary to know that deliberately shutting a gate on an inmate is inappropriate behavior. See, e.g., Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998) (finding "[s]pecific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior"). Because Plaintiff fails to establish that Defendant Smelser trained his subordinates to shut security gates on inmates in order to injury them, or even failed to train correctional officers not to slam inmates with moving security gates, knowing such failure posed a substantial risk of harm to inmates, this Court should grant summary judgment in favor of Defendant Smelser. Finally, it is well established that proof of negligence is not enough to establish a 42 U.S.C. §1983 claim. Rather, Plaintiff must prove Defendant Smelser acted with deliberate indifference to Plaintiff's inmate rights. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197(1989); Larez v. City of Los Angeles, 946 F.2d 630 (9 th Cir. 1991). Here, Plaintiff provides no proof that Defendant Smelser knew of and consciously disregarded a substantial risk of harm to Plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970,1979 (1994). Here, even on Plaintiff's best day, his claims do not establish negligence. Plaintiff simply has no evidence to prove that the D Unit Security gate was deliberately or even negligently closed on him. As the Videotape of gate operation produced as Exhibit 1 to Defendants' Reply in Support of Motion for Summary Judgment filed 5/5/05 shows, if Plaintiff was "caught" in the gate at all, it was because he chose to stand in the gateway, waiting the 12 seconds it could take for the gate to make contact with him, or tried to beat the gate by rushing through it as it was already closing. Nor does Plaintiff have any evidence that Defendant Smelser

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was somehow personally involved in the alleged incident, which such conduct by Smelser caused Plaintiff to be injured. Because no reasonable jury could find in favor of Plaintiff's claim that Defendant Smelser did some deliberate act to cause Plaintiff's claimed injury, this Court should grant summary judgment in favor of Defendant Smelser. IV. PLAINTIFF'S EMOTIONAL DISTRESS CLAIM FAILS. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), provides that incarcerated prisoners cannot make a claim for mental or emotional injuries suffered while in custody without a prior showing of physical injury. Under the PLRA must be more than de minimis. See Oliver v. Keller, 289 F.3d 623, 627 (9 th Cir. 2002). In this case, as set forth in Defendants' Motion for Summary Judgment filed March 2, 2005, and later Reply filed May 5, 2005, Plaintiff is unable to prove that he suffered anything more than a superficial cut to his ankle as a result of the October 28 th gate incident. Defendant Smelser specifically joins in the arguments set forth in Defendants' previously filed Motion for Summary Judgment and Reply. Because a superficial ankle cut or swelling and bruises does not constitute more than a de minimis injury, Plaintiff cannot recover emotional distress damages here. Therefore, this Court should grant summary judgment in favor of Defendant Smelser on Plaintiff's emotional distress claim. V. PLAINTIFF'S PUNITIVE DAMAGES CLAIM FAILS. Plaintiff must prove that: (1) the defendant's conduct was driven by evil motive or intent; or (2) the conduct was reckless or callous indifference to the plaintiff's constitutional rights, in order to recover punitive damages in this 42 U.S.C. § 1983 action. See Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983); Morgan v. Woessner, 997 F.2d 1244, 1255 (9 th Cir. 1993). As set forth

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throughout the Motions for Summary Judgment and Replies filed in this action, Plaintiff has no evidence that Defendant Smelser acted maliciously or recklessly, intending to punish Plaintiff. Accordingly, Plaintiff's punitive damages claim against Defendant Smelser fails. V. CONCLUSION Based upon the foregoing, Defendant Smelser respectfully requests this Court grant summary judgment in his favor on all claims set forth in Plaintiff's Second Amended Complaint. DATED this 18th day of November, 2005. J ONES, S KELTON & H OCHULI, P.L.C.

By /s/

Rachel Love Halvorson

2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Kimberly Mendivil, John Keesling, Michael Greene, Frank Lane, Corrections Corporation of America, Florence Correctional Center and Richard Smelser ORIGINAL of the foregoing electronically filed this 18th day of November 2005, with the Clerk of the United States District Court, District of Arizona. COPY of the foregoing mailed this 18th day of November, 2005 to: Allen P. Branco, #A5005915 Module 2-B-1 Halawa Correctional Facility 99-902 Moanalua Rd. Aiea, Hawaii 96701 Plaintiff Pro Per /s/ Francine Gatto 11 Case 2:04-cv-00593-SMM-GEE Document 130 Filed 11/18/2005 Page 11 of 11