Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Charles Hayes,
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) ) Plaintiff, ) ) v. ) CIV 03-02550 PHX NVW (JRI) ) Maricopa County Sheriff's Office, ) MEMORANDUM AND ORDER Joseph Arpaio, Officer Bunch, ) Captain Haggard, Officer Tate, ) ) Defendants. ) _____________________________________ ) Pending before the Court is Defendants' Motion for Summary Judgment. (Doc.

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#40).
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I. Procedural background
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Plaintiff, while confined in the Maricopa County Towers jail, filed a pro se
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prisoner civil rights complaint pursuant to 42 U.S.C. § 1983 on December 22, 2003 (Doc. #1).
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On July 28, 2004, the Court screened the complaint and ordered Defendants Tate and Bunch1 to answer Plaintiff's claim that Defendants used excessive force against him while he was a

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pretrial detainee in violation of his constitutional rights. (Doc. #7). The Court dismissed the
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other defendants and Count III of the complaint in the order issued July 28, 2004.
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Defendants answered the amended complaint on October 15, 2004. (Doc. #12).
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The parties engaged in discovery and Plaintiff's medical records were ordered disclosed. (Doc.
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#35). After the time for conducting discovery concluded, Plaintiff sought to obtain surveillance
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tapes taken at the jail on the date of the alleged incident giving rise to his claims (Doc. #38),
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Defendant Bunch has been incorrectly identified as Defendant "Brunch" is previous pleadings.

Case 2:03-cv-02550-NVW

Document 48

Filed 09/14/2005

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which motion was denied as not timely filed. (Doc. #43). On June 22, 2005, Defendants filed a motion for summary judgment and a separate statement of facts in support of their motion. (Doc. #40 & Doc. #41). Plaintiff filed a response to the motion for summary judgment and a separate statement of facts in support of his pleading opposing Defendants' motion for summary judgment on July 15, 2005. (Doc. #44 & Doc. #45). Defendants filed their reply to Plaintiff's response on August 1, 2005. (Doc. #46). II. Standard for granting summary judgment Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c) (2005); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of informing the 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. Summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23. See also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th

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Cir. 1994). Although the initial burden is on the movant to show the absence of a genuine issue
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of material fact, this burden may be discharged by indicating to the Court that there is an absence of evidence to support the nonmoving party's claims. See Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 193 n.2 (3d Cir. 2001). The Court must evaluate a party's motion for summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). III. Factual background In August of 2003, Plaintiff was a pre-trial detainee at the Maricopa County Sheriff's Office Madison Street jail. See Defendants' Statement of Facts (Doc. #41), para. 1. On August 20, 2003, Plaintiff was one of seven detainees being transported from the Madison Street jail to the Maricopa County Superior Courthouse located across the street from the jail. Id., para. 2. Defendant Bunch and Defendant Tate escorted Plaintiff and the other detainees from the jail to the courthouse on August 20, 2003. Id., para. 4. Plaintiff's affidavit, which is attached to his response to Defendants' motion for summary judgment, asserts that he was hand-cuffed and shackled by both Defendants and escorted by these two Defendants into an elevator along with six other inmates. Doc. #44 at 1. Plaintiff states that "The Officer asked me to walk faster and was pushing me verbally. I walked fast as I could to get on the elivator (sic)." Id. Plaintiff asserts in his affidavit that: Officer Bunch grabbed me by the neck and slammed me, the elevator wall....After that he slammed me to the wall, Officer Tate grabbed me and the two of them slammed me to the floor in front of the elevator. Officer Tate slammed his knee into my lower spine, took off my handcuffs from the front placed them to the back of me with the help of Officer Bunch. Next they picked me up and slammed me to the wall in the hallway. After this my neck & back was in more pain. Officer Bunch then took me down the elevator to the basement Id. Defendant Bunch and Defendant Tate both aver, under oath, that neither of them

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forced Plaintiff to the ground of the elevator on August 20, 2003, and they further aver that no
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other person forced Plaintiff to the ground of the elevator on August 20, 2003. Defendants'
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Statement of Facts (Doc. #41), paras. 5-8. Defendants state that, under ordinary circumstances, inmates being transported from the jail to the courthouse are hand-cuffed to one another. Id., Exh. A at para. 3, Exh. 2 at para. 3. Defendant Bunch asserts that he has forced an inmate or detainee to the ground on two occasions in the last two years and that these incidents did not involve Plaintiff. Id., Exh. A at para. 7. Defendant Tate claims that he has never taken an individual down to the ground in an elevator in my entire career, nor have I ever witnessed it happen. I would never take an individual down to the ground in an elevator, especially one containing other inmates, who in all probability were handcuffed together. It would jeopardize my safety as well as the safety of everyone in the elevator.... If an incident had occurred in the elevator on the morning of August 20, 2003, it would have been a highly unusual event and it would have been written up in an incident report. No incident report exists involving Charles Hayes. Id., Exh. 2 at paras. 5-6. Plaintiff, complaining of an injury arising on August 20, 2003, was examined by a Maricopa County Correctional Health Services physician and his back was x-rayed on September 12, 2003, approximately eleven days after Defendants allegedly used excessive force against Plaintiff. Id., para. 10 & Exh. 4. The physician reviewing this x-ray opined that the xray revealed no abnormalities or deformities: "There are no signs of fractures, lytic or sclerotic lesions nor other significant abnormalities." Id., Exh. 4. The doctor further opined that Plaintiff's cervical spine showed "mild diffuse degenerative changes," that Plaintiff's spine was "otherwise within normal limits," and that his "prevertebral soft tissues are within normal limits." Id., Exh. 4. IV. Analysis When deciding a motion for summary judgment, the Court must "assess whether the jury, drawing all inferences in favor of the nonmoving party, could reasonably render a verdict in favor of the nonmoving party in light of the substantive law." Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th Cir. 1995). Summary judgment is not appropriate where, taking the evidence and reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party, a reasonable jury could find for the non-moving
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party. Anderson, 477 U.S. at 249. Within the jurisdiction of the Ninth Circuit Court of Appeals, a claim of excessive force against a pre-trial detainee is evaluated under the Fourth Amendment analysis. See Lolli v. County of Orange, 351 F.3d 410, 417 (9th Cir. 2003); Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001); Taylor v. McDuffie, 155 F.3d 479, 482-83 (4th Cir. 1998) (noting a split among the Circuit Courts of Appeal in this regard). A Fourth Amendment claim of excessive force is analyzed under the framework set forth by the Supreme Court in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 [] (1989). That analysis requires balancing the nature and quality of the intrusion on a person's liberty with the countervailing governmental interests at stake to determine whether the use of force was objectively reasonable under the circumstances. Santos v. Gates, 287 F.3d 846, 853 (internal quotations omitted). The Ninth Circuit Court of Appeals has counseled the District Courts to grant summary judgment only sparingly in cases alleging the use of excessive force because an excessive force inquiry usually requires a jury to resolve disputed factual contentions involving the parties' credibility as to the reasonableness of the force imposed on the plaintiff. See Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.), cert. denied, 125 S. Ct. 2938 (2005). Defendants present their affidavits in support of their assertions of fact; the affidavits do not contradict one another or the other objective evidence in the record, i.e., a physician's opinion that Plaintiff did not sustain a back injury as a result of any event occurring on August 20, 2003. Defendants' statements under oath, that Plaintiff was not forced to the ground on August 20, 2003, provide some evidence from which a finder of fact could conclude that Defendants did not use any force against Plaintiff on that date. Plaintiff has presented direct evidence in the form of his sworn affidavit alleging specific facts made upon Plaintiff's personal knowledge, which would be admissible at trial, that Defendants used force on Plaintiff without provocation. Plaintiff does not seek to have reasonable inferences drawn from his testimony, but to have his statements taken as true for purposes of Defendants' motion for summary judgment, a presumption to which he is entitled. See McLaughlin v. Liu, 849 F.2d 1205, 1207-08 (9th Cir. 1988). Therefore, by presenting
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admissible evidence that Defendants used force on Plaintiff without provocation, Plaintiff has established a genuine issue of material fact precluding summary judgment in favor of Defendants. See, e.g., Smith, 394 F.3d at 701-03; Lolli, 351 F.3d at 417; Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313-14 (10th Cir. 2002); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997). Because resolving the issue of whether or not Defendants used force on Plaintiff, and the reasonableness of any force used, involves a determination of the parties' credibility, summary judgment is not appropriate at this stage of this case. See, e.g., Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rodriguez v. Kincheloe, 763 F. Supp. 463, 467 (E.D. Wash. 1991) ("Where one party has come forth with direct evidence contrary to that offered by the other, a credibility issue is raised. Credibility determinations are for the trier of fact and are not appropriately resolved by summary judgment."). Defendants' affidavits acknowledge that any use of force in the situation described by Plaintiff in his affidavit would not be reasonable. Plaintiff's factual allegations, taken in the light most favorable to Plaintiff, indicate that Defendants' use of force was not reasonable. See Amnesty America v. Town of West Hartford, 361 F.3d 113, 123-24 (2d 2004). Therefore, the Court cannot conclude, taking the facts in the light most favorable to Plaintiff for purposes of summary judgment, that Defendants are qualified immunity from Plaintiff's claims because any force used was reasonable. See, e.g., Ferreira v. Westchester County, 917 F. Supp. 209, 219 (S.D.N.Y. 1996). Additionally, in contrast to the relevant analysis in the context of an Eighth Amendment claim, the fact that Plaintiff did not suffer more than de minimis injury does not preclude his Fourth Amendment claims of excessive use of force seeking only nominal and punitive damages. See Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003). Cf. Oliver v. Keller, 289 F.3d 623 (9th Cir. 1991) (analyzing a pre-trial detainee's claim of excessive force under the Fourteenth Amendment and finding that a plaintiff could receive nominal or punitive damages even if he sustains a de minimis injury). In a Fourth Amendment excessive force inquiry, constitutional injury is presumed to flow from an officer's use of unreasonable force on a pretrial detainee. See Mayard, 105 F.3d at 1228; Herrerra v. Valentine, 653 F.2d 1220, 1228
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(8th Cir. 1981) (presumed damages are allowed when substantive constitutional rights have been violated). Compare Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (granting summary judgment where the Plaintiff had not set forth specific facts disputing the officer's version of events and where Plaintiff presented no evidence of a physical injury resulting from the alleged excessive force). V. Conclusion Plaintiff has met his burden of presenting sufficient evidence to support his factual allegations by presenting a sworn affidavit stating his version of the alleged facts with sufficient specificity, thereby creating a genuinely disputed issue of material fact precluding summary judgment in favor of Defendants. IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment (Doc. #40) is DENIED. DATED this 14th day of September, 2005.

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