(PC) Hunter v. Brenneman

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 BRANDON EUGENE HUNTER, No. 2:22-cv-1141 DJC CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 BRENNEMAN, et al., 15 Defendants. [16] 17 Plaintiff is a Sacramento County Jail inmate proceeding pro se with an action for violation 18 of civil rights under 42 U.S.C. § 1983 . This action proceeds on claims arising under the 19 Fourteenth Amendment against defendants Long, Moore, Gonzalvo, Pashetov, and Brenneman, 20 all Sacramento County Jail deputies, for excessive use of force. Defendants’ motion for summary 21 judgment is before the court. 22 I. Summary Judgment Standard 23 Summary judgment is appropriate when it is demonstrated that there “is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 26 “citing to particular parts of materials in the record, including depositions, documents, 27 electronically stored information, affidavits or declarations, stipulations (including those made for 28 ///// 1 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 2 Civ. P. 56(c)(1)(A). 3 If the moving party meets its initial responsibility, the burden then shifts to the opposing 4 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 5 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 6 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 7 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 8 and/or admissible discovery material, in support of its contention that the dispute exists or show 9 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 10 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 11 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 12 governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 13 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 14 In the endeavor to establish the existence of a factual dispute, the opposing party need not 15 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 16 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 17 trial.” T.W. Elec. Serv., 809 F.2d at 631 . 18 In resolving the summary judgment motion, the evidence of the opposing party is to be 19 believed. See Anderson, 477 U.S. at 255 . All reasonable inferences that may be drawn from the 20 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 21 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 22 obligation to produce a factual predicate from which the inference may be drawn. See Richards 23 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 , 902 24 (9th Cir. 1987). 25 ///// 26 ///// 27 ///// 28 ///// 1 II. Plaintiff’s Allegations 2 In plaintiff’s first amended complaint (ECF No. 11), signed under the penalty of perjury, 3 plaintiff alleges as follows: 4 1. On May 10, 2022,1 while plaintiff was a pretrial detainee, a “Correctional Emergency 5 Response Team” (CERT) was ordered by Sgt. Tidwell to enter plaintiff’s Sacramento County Jail 6 cell and remove plaintiff from the cell. Defendants were all part of the team. 7 2. Defendant Long entered the cell, hit plaintiff with a shield, pushed plaintiff with it, and 8 then used it to pin plaintiff against his bunk. 9 3. Defendant Brenneman entered plaintiff’s cell and punched plaintiff’s face. 10 4. Defendant Moore pinned plaintiff to the ground. 11 5. Defendants Gonzalvo and Pashetov helped pin plaintiff to the ground and failed to stop 12 Brenneman from punching plaintiff. 13 6. Plaintiff was injured in several respects including injuries to his neck, ribs, shoulders, 14 and wrists. 15 III. Failure to Exhaust 16 Defendants assert that plaintiff failed to exhaust available administrative remedies with 17 respect to his remaining claims. Under 42 U.S.C. § 1997 (e)(a), “[n]o action shall be brought with 18 respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, 19 prison, or other correctional facility until such administrative remedies as are available are 20 exhausted.” 21 The parties agree that on May 14, 2022, plaintiff submitted the only grievance concerning 22 the allegations in his first amended complaint. Plaintiff wrote that on May 10, 2022, at 10:00 23 a.m., a CERT team entered his cell unannounced to extract plaintiff for a court appearance and 24 that one of the deputies punched him in the face resulting in injuries for which he received [26] 27 1 In his first amended complaint, plaintiff indicates the events underlying his claim occurred May 5, 2022. The rest of the record reveals that the events occurred May 10. E.g. ECF No. 46 at 4828 65. 1 treatment. Plaintiff also indicated that he was placed in a choke hold, an allegation plaintiff does 2 not make in his first amended complaint. ECF 41-5 at 330. 3 Plaintiff received a response from Sgt. D. Albee on May 25, 2022. Id. at 331 . Sgt. Albee 4 wrote that he was present when plaintiff was extracted from his cell, that he had reviewed the 5 video and written documentation, that internal affairs was advised of the incident on May 23, 6 2022, and that the incident was being reviewed by jail supervisors and administrative staff. The 7 officer indicated that, as with any incident involving use of force, “there are multiple levels of 8 review.” At the bottom of the response, a box was checked indicating that the grievance had been 9 “resolved.” 10 Defendants argue this was not sufficient to exhaust administrative remedies. They argue 11 that plaintiff should have appealed Sgt. Albee’s decision to the next level which would have been 12 to the “appropriate supervisor.” ECF No. 41-5 at 319-320. However, defendants fail to indicate 13 what purpose that would have served or that any other redress as to plaintiff’s allegations could 14 have been obtained. “[A]n inmate is required to exhaust those, but only those, grievance 15 procedures that are capable of use to obtain some relief for the action complained of.” Ross v. 16 Blake, 578 U.S. 632, 642 (2016). Defendants fail to point to anything specific suggesting that 17 there was any relief available to plaintiff beyond that which was obtained at the first level. 18 Defendants have therefore not met their burden of establishing that they are entitled to summary 19 judgment based on the exhaustion of administrative remedies. 20 IV. Excessive Force 21 Claims concerning excessive force against pretrial detainees arise under the Fourteenth 22 Amendment. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). 23 To prevail on such a claim, a plaintiff must show that the defendant’s use of force was (1) 24 deliberate; and (2) objectively unreasonable. Kingsley v. Hendrickson, 576 U.S. 389 , 395-97 25 (2015). As to the second element, objective reasonableness turns on the facts of each case, such 26 as “the relationship between the need for the use of force and the amount of force used; the extent 27 of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; 28 the severity of the security problem at issue; the threat reasonably perceived by the officer; and 1 whether the plaintiff was actively resisting.” Id. at 2473. Objective reasonableness is assessed 2 based on the information known to the officer at the time. Id. at 2474. Defendants argue that 3 there is no genuine issue of material fact as to whether their use of force during the May 10, 2022 4 cell extraction was objectively unreasonable. The court agrees. 5 A. Undisputed Material Facts 6 Defendants provided a video taken before the extraction in which the CERT team is 7 identified and the reasons for the extraction are stated, a video recording of the cell extraction, 8 and a video of plaintiff receiving medical care after the extraction in which plaintiff makes 9 statements relating to the extraction. When identifying the universe of facts applicable in this 10 section, the facts come from the videos unless otherwise stated. In his opposition, plaintiff makes 11 some allegations, like an allegation that he never resisted his removal from his cell, which are 12 clearly at odds with what appears on the video. The court does not address those allegations. See 13 Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one 14 of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a 15 court should not adopt that version of the facts for purposes of ruling on a motion for summary 16 judgment.”) 17 B. Forcible Removal of Plaintiff From His Cell 18 On the day of the events at issue, Sacramento Superior Court Judge Carlton Davis ordered 19 that Sacramento County Jail staff “remove [plaintiff] involuntarily to attend court proceedings 20 [the same day] by whatever means necessary.” ECF No. 5 at 292. The video of the events shows 21 that prior to the extraction, Sgt. Tidwell explained that plaintiff would be extracted from his cell 22 with force because plaintiff had a history of taking pills requiring that he go to the infirmary 23 instead of court. Sgt. Tidwell indicated that on one occasion, plaintiff had the pills ready to ingest 24 upon an order to exit his cell for court and then did ingest them when ordered to leave the cell. 25 Sgt. Tidwell also said that the plan was to enter the cell quickly with an “element of surprise” and 26 forcibly remove plaintiff from his cell without giving plaintiff the option to exit the cell 27 voluntarily, to limit the risk of plaintiff taking pills. Plaintiff does not dispute that on prior 28 occasions he had taken pills to avoid going to court. 1 The court finds on the record before the court that there is no genuine issue of material 2 fact as to whether defendants entering plaintiff’s cell and using force to extract plaintiff (as 3 opposed to simply requesting that plaintiff exit his cell) was reasonable. Plaintiff was ordered to 4 appear for court and considering plaintiff’s prior attempts to avoid court when being given the 5 option of presenting himself for transport voluntarily, the use of at least some force was 6 reasonable. Further, the assigned judge specifically ordered defendants to extract plaintiff from 7 his cell “by whatever means” necessary. A reasonable officer would therefore conclude that the 8 use of force was not only reasonable, but required under law, and that failure to comply with a 9 court order could subject them to penalty. 10 C. Defendant Long’s Use of Shield 11 Deputy Long identified himself in the pre-extraction video as being “on the shield” for the 12 cell extraction. The shield appears to be approximately 4 feet high and 2 feet wide, with two 13 metal handles attached to the back, and is convexly shaped away from the person using it. 14 Initially, most of the CERT team lined up behind Long to the left of plaintiff’s cell out of 15 plaintiff’s view. After another officer peeked into plaintiff’s cell to locate plaintiff, someone 16 noted that plaintiff was “up.” Just after that, plaintiff appeared at the cell window. About five 17 seconds later, a member of the CERT team opened plaintiff’s cell door. Long moved toward the 18 door first behind his shield. Seeing Long coming, plaintiff remained at the door without any 19 retreat. As Long entered the cell he ordered plaintiff to the ground, but plaintiff refused. 20 Accordingly, Long used the shield to push plaintiff back into his cell. While the camera lost 21 Long and plaintiff in view, it did capture the attempts of other officers to subdue plaintiff’s 22 resistance inside the cell. The camera then captured plaintiff being subdued by 4 or 5 officers 23 while the portion of his body from his buttocks upward were on his bunk face down and his legs 24 were off the bunk being held by officers. Plaintiff continued to resist in this same position for 25 approximately 90 seconds. At that point, the shield was being pushed onto plaintiff’s back. Long 26 then disengaged the shield and the shield was removed from the cell. According to Long, he 27 disengaged the shield because the use of the shield prevented officers from obtaining control over 28 ///// 1 plaintiff’s arms as plaintiff kept his arms under his torso while Long pushed the shield on 2 plaintiff’s back. ECF No. 41-5 at 190.2 3 Shortly after the shield was disengaged, plaintiff got to his feet and continued to resist 4 violently, lashing out at the deputies for approximately 40 seconds until the deputies forced 5 plaintiff to the ground. While on the ground plaintiff continued to resist strenuously until the 6 deputies threatened to utilize a taser on plaintiff. 7 On this record there is no genuine issue of material fact as to whether the use of the shield, 8 and the way Long used it, was objectively unreasonable. As evidenced by the fact that once Long 9 disengaged the shield it took the strength of four deputies to restrain plaintiff, the use of the shield 10 was appropriate in the situation. The only aspect of the use of the shield worthy of further 11 mention is how Long used the shield to push plaintiff toward plaintiff’s bunk where plaintiff 12 appeared to land awkwardly on the front of the bunk and the bunk itself. The court finds Long’s 13 actions reasonable as the bunk was behind plaintiff as Long pushed plaintiff with the shield. 14 Plaintiff had the option of not being pushed toward the bunk by going to the ground as ordered or 15 by terminating his resistance. 16 Defendant Long is entitled to summary judgment. 17 D. Pinning Plaintiff to the Ground 18 Plaintiff was eventually pinned to the ground for approximately three minutes while, at 19 times, violently resisting after Long removed the shield. When on the ground plaintiff told the 20 deputies that he could not breathe so the deputies rolled plaintiff to his side. While plaintiff was 21 still pinned to the ground at that point, there was no weight being applied to him above his waist. 22 Eventually, plaintiff had to be dragged from his cell because he refused to stand up and walk out 23 of the cell. 24 The record before the court does not suggest a genuine issue of material fact as to whether 25 plaintiff’s being pinned to the ground was objectively unreasonable. Indeed, when plaintiff 26 complained he could not breathe, deputies changed his position on the ground. [27] 2 In his opposition, plaintiff claims his arms were not buried under his torso. ECF No. 46 at 10. 28 Whether they were is immaterial. What matters is that Long disengaged use of the shield. 1 E. Punches Thrown by Brenneman 2 Defendant Brenneman admits punching plaintiff four or five times in the chaos 3 immediately following the removal of the shield. In his report concerning the incident, 4 Brenneman indicates as follows: 5 HUNTER stood up to his feet and escalated his resistance to deputies' efforts to control him by thrashing his body. As HUNTER stood up 6 he stepped backwards leaving me in front of him. I was unable to control HUNTER's left arm as he overpowered me and pulled his 7 arm away. I feared HUNTER would attack me and my partners due to him no longer being restrained on the bunk. I punched HUNTER 8 approximately five times in the face. 9 ECF No. 41-5 at 179. The video shows that once the shield was removed, plaintiff attempted to 10 come to his feet and was resisting. Brenneman threw punches at plaintiff with significant force in 11 rapid succession taking less than five seconds.3 The court accepts Brenneman’s assertion that 12 five punches landed on plaintiff’s face.4 13 From the video taken after the incident, plaintiff appeared to have three minor abrasions 14 on his face and no noticeable swelling. He appeared agitated, not in any pain (although at one 15 point he indicates he was in pain), and not particularly interested in medical treatment. Plaintiff 16 said that the portion of Brenneman’s hand that connected with his face was covered with a hard 17 protective plastic. The video confirms the deputies wore gloves akin to ski gloves, and 18 Brenneman does not deny that the gloves he wore had hardened plastic covering some portion of 19 the back of the fingers and/or hands. Construing the evidence in the light most favorable to 20 plaintiff, as the court must, the court assumes some part of the gloves were covered in hard plastic 21 and that the portion of Brenneman’s hand that connected with plaintiff’s face was covered with 22 hard plastic. 23 The court therefore finds that there is at least a genuine issue of material fact as to whether 24 Brenneman’s punching plaintiff in the face five times with hard plastic gloves was objectively 25 3 The punches can be viewed on the video at about 2:40. [26] 4 In his report, Brenneman also indicates that after the initial round of punches, plaintiff punched 27 Brenneman, and Brenneman punched back. ECF No. 41-5 at 179. To be clear, the claim which remains concerns the first round of punches thrown by Brenneman. In the video taken after the 28 cell extraction, plaintiff admits he punched an officer after being punched. 1 unreasonable. While it was reasonable for Brenneman to attempt to restrain plaintiff, whether an 2 affirmative attack of five punches to the face with gloves covered in hard plastic was warranted 3 must be left to a finder of fact. 4 However, given the chaotic nature of the events until plaintiff was subdued, and 5 considering the very short period that elapsed between the first and last punch, no other defendant 6 was in a position to mind the actions of defendant Brenneman. Therefore, the other defendants 7 cannot be held liable for failing to stop Brenneman’s punches. 8 F. Qualified Immunity 9 Defendants assert they are entitled to summary judgment pursuant to the “qualified 10 immunity” doctrine. “Government officials enjoy qualified immunity from civil damages unless 11 their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable 12 person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting 13 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing a qualified immunity defense, the 14 court must consider the following: (1) whether the facts taken in the light most favorable plaintiff 15 create at least a genuine issue of material fact as to whether defendant's conduct violated a 16 constitutional right; and (2) whether the right at issue was clearly established at the time of the 17 incident. Saucier v. Katz, 533 U.S. 194 , 201 (2001). 18 With respect to every defendant and claim except for plaintiff’s excessive force claim 19 against Brenneman, the court has found that there is no genuine issue of material fact as to 20 whether any of plaintiff’s constitutional rights were violated. Therefore, the court proceeds to 21 step 2 of the qualified immunity analysis only with respect to the claim against Brenneman. 22 As for step 2, existing precedent must put beyond debate whether the facts, considered in 23 the most favorable light to plaintiff, amount to a violation of a constitutional right. Kisela v. 24 Hughes, 584 U.S. 100, 104 (2018). 25 Considering the evidence in the light most favorable to plaintiff, plaintiff, while resistant, 26 was not attacking officers immediately before he was punched. Defendant Brenneman was in full 27 protective gear and had the assistance of 8 other officers, also in full protective gear, with three of 28 ///// 1 those officers actively attempting to restrain plaintiff. Defendant Brenneman punched plaintiff in 2 the face five times with downward blows while wearing gloves covered in hard plastic. 3 The law is clear that correctional staff have license to react quite forcefully to subdue an 4 uncooperative or combative inmate. Madrid v. Gomez, 889 F. Supp. 1146, 1254 (N.D. Cal. 5 1995). The law is equally clear that any response must be measured. Even when an inmate’s 6 conduct warrants some use of force, “evolving norms of decency require prison officials to use 7 techniques and procedures that are both humane and restrained.” Slakan v. Porter, 37 F.2d 368 , 8 372 (9th Cir. 1984). 9 If it were a matter of one or two punches to some other part of plaintiff’s body, defendant 10 would most likely be entitled to summary judgment under the qualified immunity doctrine. 11 However, the court finds that five blows directly to the face with the other attendant 12 circumstances identified above is not the sort of required measured response identified in clearly 13 established law. Therefore, defendant Brenneman is not entitled to summary judgment based 14 upon the qualified immunity doctrine. 15 VI. Conclusion 16 For all the foregoing reasons, the court will recommend that defendants’ motion for 17 summary judgment be granted in part and denied in part. 18 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion for summary 19 judgment (ECF No. 41) be granted in part and denied in part as follows: 20 1. Denied with respect to plaintiff’s remaining excessive force claim against defendant 21 Brenneman arising from Brenneman’s punches to plaintiff’s face. 22 2. Granted in all other respects. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be served and filed within fourteen days after service of the objections. The 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: August 28, 2024 i / aie ll 4 CAROLYNK. DELANEY 5 UNITED STATES MAGISTRATE JUDGE [7] 8] 1 9 hunt! 141.msj [10] 1] [28] 1]