Dwayne Conyers v. Corporal Rodriguez

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 DWAYNE CONYERS, Case No.: 17cv0127-LAB (AHG) — 12 — ORDER GRANTING MOTION Plaintiff, 13 FOR SUMMARY JUDGMENT v. — 14 — CORPORAL MICHAEL RODDY, — 15 — Defendant. — 16 — 17 Plaintiff Dwayne Conyers is a California state prisoner proceeding by and through 18 counsel with a Fifth Amended Complaint pursuant to 42 U.S.C. § 1983 . (Electronic Case 19 File “ECF” No. 51.) He claims that while in custody of the San Diego County Sheriff’s 20 Department awaiting trial for a criminal offense, and while hospitalized as a result of a 21 prescription medication overdose, he was sexually assaulted and harassed by Defendant 22 San Diego County Sheriff’s Deputy Corporal Michael Roddy. (ECF No. 51-1 at 1-2.) 23 Currently pending is a Motion for Summary Judgment by Defendant Roddy. (ECF 24 No. 89.) Defendant contends there is no genuine issue of material fact in dispute because: 25 (1) the forensic evidence proves Plaintiff’s allegations are false, (2) eyewitness and expert 26 medical evidence show he was hallucinating and delusional due to his overdose or mental 27 illness, (3) his allegation that Defendant entered a continuously monitored room in a 28 heavily trafficked area of a hospital and assaulted him unnoticed for 10-15 minutes while 1 he was pressing an emergency call button is implausible, and (4) Plaintiff lied to the 2 investigating detectives and has changed his story multiple times. (Id.) 3 Plaintiff opposes summary judgment, arguing the chain of custody of the forensic 4 evidence is compromised and not all evidence was tested, and that his sworn deposition 5 testimony raises genuine issues of material fact. (ECF No. 92.) 6 Defendant replies that the chain of custody of the forensic evidence is intact, all 7 relevant evidence was tested, and Plaintiff’s deposition testimony fails to raise a genuine 8 issue because it does not refute Defendant’s evidence. (ECF No. 93.) 9 For the following reasons, the Court GRANTS summary judgment in favor of 10 Defendant Roddy.1 11 I. Procedural Background 12 Plaintiff initiated this action by filing a pro se Complaint on December 15, 2016 in 13 the Central District of California naming as Defendants San Diego County Sheriff’s 14 Deputy Corporal Rodriguez, a John Doe Nurse and two John Doe San Diego County 15 Sheriff’s Deputies. (ECF No. 1.) The Complaint was transferred to this Court on January 16 19, 2017. (ECF No. 6.) Plaintiff named the same Defendants in a First Amended 17 Complaint filed March 30, 2017, and a Second Amended Complaint filed May 18, 2017. 18 (ECF Nos. 16, 23.) 19 On August 18, 2017, the Court granted Plaintiff’s Motion for appointment of 20 counsel. (ECF No. 31.) Plaintiff’s appointed counsel filed a Third Amended Complaint 21 on January 19, 2018 (ECF No. 36), and a nearly identical Fourth Amended Complaint on 22 January 22, 2018. (ECF No. 38.) Those complaints named as Defendants San Diego 23 County, the San Diego County Sheriff’s Department, and San Diego County Sheriff’s 24 Deputies Michael Roddy and Luciano Rodriguez. (ECF No. 38 at 2.) — 25 — — 26 — 1 Although this motion was referred to United States Magistrate Judge Alison H. Goddard 27 pursuant to 28 U.S.C. § 636 (b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument is necessary for the disposition of this matter. See — 28 — 1 On May 25, 2018, the Court granted a motion to dismiss by San Diego County and 2 the San Diego County Sheriff’s Department and dismissed those Defendants without 3 prejudice and with leave to amend. (ECF No. 50.) On June 9, 2018, Plaintiff filed a Fifth 4 Amended Complaint, the operative pleading in this action, naming as the sole Defendant 5 San Diego County Sheriff’s Deputy Corporal Michael Roddy.2 (ECF No. 51.) 6 Defendant Roddy filed a Motion to Dismiss on July 20, 2018, which was denied on 7 September 18, 2019, and filed an Answer on November 2, 2018. (ECF Nos. 56, 60, 62.) 8 He filed the instant Motion for Summary Judgment on September 30, 2019. (ECF No. 89.) 9 Plaintiff filed an Opposition on October 24, 2019. (ECF No. 92.) Defendant filed a Reply 10 on November 7, 2019. (ECF No. 93.) 11 II. Plaintiff’s Allegations 12 Plaintiff alleges that on June 24, 2016, while he was in the custody of the San Diego 13 County Sheriff’s Department awaiting trial in a criminal case in the San Diego County 14 Superior Court, he was transported to the Tri-Care Medical Center in Oceanside, 15 California, and admitted for Dilantin poisoning. (ECF No. 51-1 at 1.) At some unidentified 16 time during his hospitalization: 17 Defendant Roddy entered Plaintiff’s hospital room while Plaintiff was handcuffed to the bed, and Defendant Roddy then approached Plaintiff, — 18 — looked Plaintiff in the eyes, uttered the racial epithet “nigga”, and said to 19 Plaintiff, “Shut up, I’ll blow your head off” and “You[’d] better do what I say.” [¶] Immediately after Defendant Roddy issued the aforementioned — 20 — verbal orders, Defendant Roddy touched Plaintiff’s buttocks, exposed 21 Defendant Roddy’s penis, masturbated Defendant Roddy’s penis, ejaculated onto Plaintiff’s bed sheets, and left Plaintiff’s room. By the time that — 22 — Defendant Roddy departed Plaintiff’s room, Plaintiff activated an emergency 23 button on the side of his bed. 24 (Id. at 1-2.) — 25 — — 26 — 2 The caption of the Fifth Amended Complaint lists Does 1-100 as Defendants but Plaintiff 27 has never identified the Doe Defendants by name nor provided any other identifying factors, and has never moved to substitute the true names for the Does. Accordingly, — 28 — 1 Plaintiff alleges Defendant Roddy was acting under color of state law and within the 2 scope of his employment. (Id. at 2.) Plaintiff presents a single count for violation of his 3 Fourteenth Amendment rights to privacy and to be free of sexual harassment, sexual assault 4 and sexual battery. (ECF No. 92 at 3.) 5 III. Discussion 6 Defendant Roddy seeks summary judgment on the basis that: (1) forensic testing 7 found no semen on the bedsheet, (2) eyewitness and expert medical testimony show 8 Plaintiff was hallucinating and delusional during the alleged events, (3) police reports and 9 declarations show he provided false information to law enforcement on the night of the 10 incident and has changed his story multiple times, and (4) declarations from hospital staff 11 show such an assault could not have gone unnoticed by staff because his room was 12 continuously monitored in a heavily trafficked area of the hospital. (ECF No. 89.) 13 Plaintiff opposes summary judgment, contending the chain of custody of his 14 bedsheets was compromised and there remains a genuine issue whether Defendant 15 ejaculated on them, and Plaintiff’s deposition testimony is sufficient to raise genuine issues 16 of material fact because credibility determinations are not permitted on summary judgment. 17 (ECF No. 92.) 18 Defendant replies that the chain of custody of the bedsheets is intact, and Plaintiff’s 19 contention that unspecified portions of his deposition testimony raise genuine issues for 20 trial fails notwithstanding the prohibition on credibility determinations because his 21 deposition testimony does not refute Defendant’s evidence. (ECF No. 93.) 22 A. Legal Standards 23 Defendant is entitled to summary judgment if he demonstrates “there is no genuine 24 issue as to any material fact and the movant is entitled to judgment as a matter of law.” 25 Fed. R. Civ. P. 56(c). The moving party has the initial burden of showing summary 26 judgment is proper “by showing the absence of a genuine issue as to any material fact.” 27 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Entry of summary judgment is 28 appropriate “against a party who fails to make a showing sufficient to establish the 1 existence of an element essential to that party’s case, and on which that party will bear the 2 burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material 3 fact,’ since a complete failure of proof concerning an essential element of the nonmoving 4 party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 5 U.S. 317, 322-23 (1986). 6 In order to avoid summary judgment, the nonmovant must present “specific facts 7 showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 8 242, 256 (1986). The Court may not weigh evidence or make credibility determinations, 9 and any inferences drawn from the underlying facts must be viewed in the light most 10 favorable to the nonmoving party. Id. at 255. The nonmovant’s evidence need only be 11 such that a “jury might return a verdict in his favor.” Id. at 257. 12 B. Arguments and evidence in support and opposition to summary judgment 13 1. Defendant’s Motion for Summary Judgment 14 Defendant Roddy presents a San Diego County Sheriff’s Department Crime/Incident 15 Report by Deputy Sheriff Luciano Rodriguez stating that he was assigned to the Tri-City 16 Medical Center Hospital as a Floor Rover/Escort on June 25, 2016. (ECF No. 89-2 at 817 10.) About 6:45 p.m. that evening, Plaintiff, who was talking rapidly and incoherently, 18 told Deputy Rodriguez he had been raped by a black corporal earlier that morning. (Id. at 19 8.) Deputy Rodriguez reported the rape allegation to Vista Detention Watch Commander 20 Lieutenant Ausler and was instructed to obtain further details. (Id.) About 7:05 p.m. 21 Deputy Rodriguez asked Plaintiff what happened, and he said: “The big black corporal 22 came into the room this morning while I was lying in bed, circled around my bed and threw 23 me down. He penetrated me and then he cleaned his dick in my bed sheets.” (Id. at 8-9.) 24 Plaintiff took his hospital gown out of a pillow case where he had hidden it and asked 25 Deputy Rodriguez to look at his bedsheets but kept showing him the gown. (Id. at 9.) 26 Deputy Rodriguez stated that Plaintiff “became very agitated by waving his hands and the 27 gown and making incoherently [sic] statements that I could not understand.” (Id.) Deputy 28 Rodriguez then interviewed Nurse Marek Gorski who stated that Plaintiff had been in room 1 303 by himself since his arrival, and room 303 has a live camera feed used to monitor the 2 behavior of patients and inmates but which does not record. (Id.) Nurse Gorski told Deputy 3 Rodriguez that beginning about 4:00 p.m. that day Plaintiff began accusing anyone who 4 entered his room of rape, and was very agitated and threw things on the floor, but after he 5 took his medication he “calmed down, apologized and said he hears voices in his head that 6 are telling him he is being raped.” (Id.) 7 Deputy Rodriguez was told by Deputy James Clark that about 1:00 a.m. on June 26, 8 2016, Deputy Clark and Nurse Roman Manongsong entered Plaintiff’s room to change his 9 linens and allow him to brush his teeth. (Id. at 10.) Deputy Clark said that when Plaintiff 10 began to brush his teeth “he started yelling and screaming and had a conversation by 11 himself with an imaginary entity.” (Id.) Nurse Manongsong told Deputy Rodriguez the 12 hospital notified the Poison Control Center because Plaintiff had such a high level of 13 Dilantin in his blood, and that high levels of Dilantin cause confusion and hallucinations, 14 both of which were observed in Plaintiff’s behavior. (Id. at 10.) About 6:00 a.m., Deputy 15 Rodriguez spoke to Defendant Roddy, who he thought might be the person Plaintiff was 16 accusing because he was the only black corporal on duty when Plaintiff claimed he was 17 raped. (Id.) Defendant Roddy said he had not talked to Plaintiff all shift, and that he had 18 been in his room only once during his shift when he escorted Nurse Gorski into the room, 19 but Plaintiff started yelling and screaming incoherently so Defendant Roddy asked Nurse 20 Gorski to come back later and they both left the room at the same time. (Id.) 21 Defendant presents a San Diego County Sheriff’s Department Crime/Incident 22 Report by San Diego County Sheriff’s Detective Michele Vars stating that she and 23 Detective Snelling arrived at the hospital around 10:00 p.m. on June 25, 2016 and spoke 24 with Deputy Rodriguez. (Id. at 14.) They interviewed Plaintiff and recorded the interview 25 without his knowledge. (Id.) An audio recording of the interview and corresponding 26 transcript is in the record. (Id. at 37-59.) Plaintiff said a black corporal stood outside his 27 room while another black corporal entered the room, hit him on the head, told him to shut 28 up, threw him on the bed, anally raped him, and “wiped himself and threw whatever was 1 left on the sheet.” (Id. at 14-15.) Plaintiff pointed to a pillowcase and said the sheet which 2 the corporal ejaculated on was in the pillowcase. (Id. at 15.) Detectives Vars collected as 3 evidence a pillowcase containing Plaintiff’s gown and the sheet he said the deputy had 4 ejaculated on and assigned it evidence item #1.000, collected a mattress sheet from his bed 5 and assigned it evidence item #2.000, and obtained his permission to conduct a Sexual 6 Assault Response Team (“SART”) examination. (Id. at 16; ECF No. 89-13 at 3.) 7 The detectives interviewed Plaintiff again a few minutes after the evidence was 8 collected, this time informing him the interview would be recorded. (ECF No. 89-2 at 16.) 9 An audio transcript of the interview and corresponding transcript are in the record. (Id. at 10 61-80.) Plaintiff said his anus had not been penetrated by the black corporal’s penis and 11 he had not been touched, but then said the black corporal had touched his buttocks and had 12 masturbated and ejaculated onto his bedsheets. (Id. at 16-17.) Detective Vars collected a 13 DNA swab from Plaintiff and told him because he was no longer alleging rape a SART 14 examination would not be performed. (Id. at 17.) Detective Vars concluded her report by 15 stating that based on the statements taken, and Plaintiff’s medical and mental status and his 16 changing accounts: “I do not believe Corporal Roddy or any other peace officer raped, 17 masturbated or inappropriately touched Conyers for sexual gratification.” (Id.) As detailed 18 below, Defendant presents declarations from Deputies Clark, Rodriguez and Roddy, 19 Detectives Vars and Snelling, and Nurses Gorski and Manongsong confirming the events 20 and observations set forth in the foregoing police reports. (ECF Nos. 89-3, 89-8, 89-10, 21 89-11, 89-12, 89-12, 89-15.) 22 Defendant presents a forensic case report from Bode Technology produced at the 23 request of Plaintiff’s attorney which states that a “sheet” taken from a pillowcase and 24 assigned evidence item #1.000 tested negative for semen, and a hospital bed “mattress 25 sheet” assigned evidence item #2.000 tested negative for seminal fluid. (Id. at 31.) 26 Defendant has lodged portions of Plaintiff’s deposition transcript in which, as detailed 27 below, he states the assault lasted 10 to 15 minutes, he was pressing the emergency call 28 button the entire time, the officer who assaulted him had short hair and was pointing his 1 gun at him with one hand while masturbating with the other, and acknowledging he might 2 have initially reported that he had been raped. (ECF No. 89-2 at 128-71.) 3 Defendant presents declarations from Defendant Roddy, Deputy Rodriguez and their 4 supervisor San Diego Sheriff’s Deputy Sergeant Carl Spregelmeyer, along with Tri-City 5 Medical Center business records, which indicate Defendant Roddy left the hospital at 4:00 6 p.m. on June 25, 2016 and Deputy Rodriguez came on duty at 6:00 p.m. that day. (ECF 7 No. 89-2 at 33; ECF No. 89-3 at 1-3; ECF No. 89-10 at 1-4; ECF No. 89-16 at 1-3.) 8 Defendant argues that evidence shows Plaintiff could not have seen the two deputies 9 together as he claims. (ECF No. 89-1 at 22-23.) 10 Defendant presents declarations from staff at Tri-City Medical Center, including 11 Nurses Gorski and Manongsong and their supervisor Nurse Lori Roach stating that 12 Plaintiff’s room is located near the nurse station, the assistant manager’s office, the case 13 manager’s office, and the restrooms, that it is in one of the most heavily trafficked areas of 14 the hospital where 4-5 deputies are usually on guard along with as many as 15-20 California 15 Department of Corrections and Rehabilitation officers, that his room is monitored 24 hours 16 a day by live video feed at the nurse station, and that while Plaintiff was in the hospital he 17 had used the emergency call button but never to summon help while being bothered by a 18 deputy. (ECF No. 89-9 at 1-3; ECF No. 89-12 at 1-3; ECF No. 89-15 at 1-2.) Defendant 19 Roddy argues it is implausible a deputy could have entered the room and stayed for more 20 than a few moments before being observed, much less for the 10-15 minutes Plaintiff 21 claims he was in his room while Plaintiff was pressing the emergency call button the entire 22 time. (ECF No. 89-1 at 23-24.) 23 Defendant presents eyewitness testimony and medical evidence showing Plaintiff 24 was delusional, hallucinating and severely confused at the time of the alleged incident, and 25 argues his allegations are therefore not reliable, believable, accurate or even plausible. 26 (ECF No. 89-1 at 25-28.) He presents excerpts from the deposition of Dr. Minh Nguyen, 27 the admitting physician when Plaintiff arrived at the hospital on the evening of June 24, 28 2016, who diagnosed him upon admission with acute toxic encephalopathy and Dilantin 1 toxicity, and noted a chief complaint of “altered mental status” with symptoms of confusion 2 and agitation due to ingestion of more than triple his daily dose of Dilantin. (ECF No. 893 2 at 179-83.) Dr. Nguyen noted Plaintiff was at that time taking Risperdal, a psychotropic 4 medication used to treat manic patients, and Zoloft, an anti-depressant used to treat 5 depression and bipolar disorder. (Id. at 180-81.) Dr. Nguyen found the Dilantin in 6 Plaintiff’s system was at a level where a patient would experience symptoms of dizziness, 7 lightheadedness, unsteady gait, double vision, confusion and agitation. (Id. at 183, 188.) 8 Dr. Nguyen reported Plaintiff was still suffering from acute toxic encephalopathy and 9 Dilantin toxicity during a follow-up visit two days later, and that the level of Dilantin in 10 his system had increased since the first visit. (Id. at 192-93.) 11 Defendant presents declarations from six eyewitness, Nurses Manongsong and 12 Gorski, Deputies Clark and Rodriguez, and Detectives Vars and Snelling, stating that 13 Plaintiff was incoherent, manic, hearing voices and hallucinating. (ECF No. 89-1 at 2614 27; ECF No. 89-8 at 1-2; ECF No. 89-10 at 2-4; ECF No. 89-11 at 3; ECF No. 89-12 at 2; 15 ECF No. 89-13 at 4; ECF No. 89-15 at 2.) He presents the declaration of Deputy Osmark 16 Gonzalez who states that on July 1, 2016, while Plaintiff was housed at George Bailey 17 Detention Facility after his return from the hospital, he escorted Plaintiff to a medical 18 evaluation with Dr. Purviance attended by Nurse Ko Kwan where Plaintiff made incoherent 19 statements about being sexually molested by “Colonel Rodriguez,” and that Dr. Purviance 20 found him to be in an altered state of mind. (ECF No. 89-14 at 1-2.) Deputy Gonzalez 21 states that Plaintiff was seen by Dr. Redburn less than two hours later and found to be 22 psychotic. (Id. at 2.) 23 Finally, Defendant presents the declaration of Dr. Richard Clark, a toxicologist 24 retained as an expert witness, who opines, based on his review of the medical records, that 25 Plaintiff was suffering severe Dilantin toxicity when admitted on June 24, 2016 until his 26 discharge on June 29, 2016. (ECF No. 89-5 at 1-3.) Dr. Clark states he believes to a 27 “reasonable medical probability” that Plaintiff’s Dilantin toxicity caused or contributed to 28 the delusions, paranoia, hallucinations, confusion and agitation observed in his behavior 1 during his hospital stay, and “his claim of being sexually molested is most likely related to 2 a hallucination or delusion[al] belief related to his [Dilantin] toxicity, perhaps coupled with 3 psychiatric disorders and other medical problems.” (Id. at 3.) 4 2. Plaintiff’s Opposition 5 Plaintiff first challenges the forensic evidence that the bedsheets tested negative for 6 semen. (ECF No. 92 at 7.) He argues Detective Vars violated chain of custody protocol 7 by storing the bedsheets and hospital gown in her desk drawer for 19 days prior to sending 8 them out for testing, and that the “negative testing contention is impeached” by the use of 9 the term “fitted sheet” by the attorneys in the joint statement of undisputed facts rather than 10 the terms “bed sheet” or “flat sheet” used by Detective Vars when she impounded them. 11 (Id.) He contends Defendant Roddy’s semen was deposited on a bed sheet or flat sheet, 12 yet a “fitted sheet” was tested for semen, and it is common knowledge hospitals do not use 13 fitted sheets, only flat sheets. (Id.) He contends a genuine issue of material fact remains 14 as to whether Defendant Roddy ejaculated onto his bedsheets. (Id.) 15 Plaintiff also contends his deposition testimony creates a genuine issue of material 16 fact because his credibility cannot be challenged on summary judgment. (Id. at 8-9.) He 17 described the incident at his deposition as follows: 18 Corporal Roddy stopped in front of my bed. He whispers into the other black deputy’s ear. The black deputy goes to the hallway. Corporal Roddy — 19 — comes to my bed. He placed his hand on his gun. His gun would be to the 20 door, going this way because we wears it right here. Okay. I got this little cheap nightgown on from the hospital. He touched my buttocks. He said, — 21 — “Nigger, shut up. I’ll blow your motherfucking head off. You better do what 22 I say.” — 23 — I never in my life been in this hospital. Somebody gets on the intercom 24 and coaches him throughout the whole assault. The assault takes place for 10 to 15 minutes. Corporal Roddy unzips his pants, ejaculates on my bed. Why — 25 — wasn’t his semen on those sheets? I don’t have a clue, but at the same time 26 he went - he the [sic] ejaculated on them sheets. — 27 — 28 (ECF No. 89-2 at 139-40.) 1 Plaintiff said in his deposition he was lying on his side watching television when 2 Defendant Roddy, who he described as having short hair, touched his left buttock under 3 his gown with one hand for “a quick second.” (Id. at 136, 144-47, 152.) Defendant Roddy 4 held his gun in one hand pointing it at Plaintiff while he masturbated in front of him with 5 the other hand and ejaculated on his bedsheet. (Id. at 158.) He said the other black deputy 6 “must have went to the camera room because he coached the whole sexual assault.” (Id. 7 at 143.) Plaintiff said a man was coaching Defendant Roddy during the entire incident by 8 talking over a loudspeaker or intercom connected to the video system monitoring his room, 9 but he could not identify him. (Id. at 150.) He said he began pressing the emergency call 10 button as soon as Defendant Roddy approached him and continued pressing it the entire 11 time but no one ever responded, said there is “a big picture window” in the wall of his room 12 from which one “can’t help but see” what is happening in the corridor, and that he did not 13 know if the door to his room was open or closed during the incident. (Id. at 143-44, 159, 14 166.) He said that about 30 minutes after the assault a nurse and a red-headed deputy came 15 to his room and were there for about a minute or two before Deputy Rodriguez, who 16 Plaintiff knew from being escorted to court in the past, walked past his room while 17 Defendant Roddy walked past the other way. (Id. at 159-62.) Plaintiff shouted to Deputy 18 Rodriguez that Defendant Roddy had assaulted him, and “about four deputies grabbed 19 [Defendant Roddy] and pulled him down the hallway.” (Id.) 20 Plaintiff said he told everyone at that time he had been sexually assaulted, but 21 “everybody else was yelling ‘rape, rape, rape, rape, rape, rape.’ So I could have probably 22 said ‘rape’ too.” (Id. at 162-63.) Plaintiff stated that Defendant Roddy “showed his guilt” 23 by jumping up and down repeatedly saying: “I didn’t do it,” because an innocent man 24 would have been taciturn when faced with such an allegation. (Id. at 165-69.) 25 Plaintiff also submits his own declaration in opposition to summary judgment, dated 26 October 13, 2019, about three months after his July 23, 2019 deposition. (ECF No. 92-1.) 27 He states he never at any time reported he had been raped or anally penetrated, and the 28 statements by Deputy Rodriguez, Nurse Gorski and Detectives Snelling and Vars that he 1 made such reports are false. (Id. at 6, 9-11.) He claims Nurse Manongsong falsely stated 2 he was hallucinating. (Id. at 9.) 3 3. Defendant’s Reply 4 Defendant presents declarations from Senior Deputy County Counsel Stacey 5 Liberatore and Laura Dolan who state that no “fitted sheet” was taken into evidence or 6 tested by Bode Technology as Plaintiff contends, and the term “fitted sheet” was used only 7 by them when coordinating transmission of the sheets to the laboratory for testing. (ECF 8 No. 93-1 at 1-5; ECF No. 93-2 at 1-3.) Defendant argues that everyone who actually 9 handled the sheets, including Detectives Vars and Snelling, San Diego County Sheriff’s 10 Department Property/Evidence Unit Evidence Custodian Flavio Alfaro, and Bode 11 Technology forensic analyst Dywayne Martin, all of whom present declarations, never 12 used the term “fitted” or “flat” sheet, that only the attorneys involved in the case used those 13 terms, and that Bode Technology received and tested the sheets which were taken into 14 evidence at the hospital. (ECF No. 93 at 5-7.) Defendant presents photographs of the bed 15 sheets taken by the police and by the testing laboratory, and, as detailed below, relies on 16 declarations and Bode Technology documents to demonstrate the chain of custody of the 17 sheets is unbroken and the sheets seized were the ones tested. (Id. at 5-8; ECF No. 93-3 at 18 3, 5-7; ECF No. 89-2 at 19-27.) Defendant Roddy presents his own declaration denying 19 Plaintiff’s allegations and stating he is, and was at the time of the alleged assault, 20 completely bald with no hair on his head. (ECF No. 89-3 at 2-3.) 21 Defendant also challenges Plaintiff’s contention that his deposition testimony raises 22 a genuine issue of material fact, arguing that his testimony does not refute Defendant’s 23 evidence that: (1) he admitted providing false information to law enforcement during their 24 investigation of his complaint, (2) he admitted changing his story multiple times, (3) he 25 was in a severely confused, altered mental state at the time of the alleged incident and for 26 some time later, and (4) an expert toxicologist opined that his claims are likely the result 27 of hallucinations and delusions caused by Dilantin poisoning. (ECF No. 93 at 8-11.) 28 Defendant argues Plaintiff has presented no evidence to rebut the evidence that Plaintiff 1 misidentified Defendant Roddy as the assailant, if there was one, that Deputy Rodriguez 2 and Defendant Roddy were not working at the same time when Plaintiff claims they were, 3 or that it is not possible a 10-15 minute sexual assault in Plaintiff’s room could have gone 4 unnoticed by hospital staff. (Id.) 5 C. Defendant is Entitled to Summary Judgment 6 Plaintiff presents a single count for violation of his Fourteenth Amendment rights to 7 privacy and to be free of sexual harassment, sexual assault and sexual battery while he was 8 in the custody of the San Diego County Sheriff awaiting trial. (ECF No. 92 at 3.) Because 9 Plaintiff was a pretrial detainee at the time of the alleged events, his rights are protected by 10 the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520 , 535 11 n.16 (1979). “Sexual misconduct by a police officer toward another generally is analyzed 12 under the Fourteenth Amendment, sexual harassment by a police officer of a criminal 13 suspect during a continuing seizure is analyzed under the Fourth Amendment.” Fontana 14 v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001); see also Reed v. Hoy, 909 F.2d 324, 329 (9th 15 Cir. 1990) (“[C]laims arising before or during arrest are to be analyzed exclusively under 16 the Fourth Amendment’s reasonableness standard rather that the [Fourteenth 17 Amendment’s] substantive due process standard.”), overruled on other grounds by Edgerly 18 v. City and County of San Francisco, 559 F.3d 946 , 956 n.14 (9th Cir. 2010). 19 Under the Fourteenth Amendment, “the threshold question is ‘whether the behavior 20 of the governmental officer is so egregious, so outrageous, that it may fairly be said to 21 shock the contemporary conscience.’” Fontana, 262 F.3d at 882 n.7, quoting County of 22 Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The “unreasonable, non-consensual, 23 inappropriate touching” of a “helpless, handcuffed, and frightened” person by a peace 24 officer violates the Fourth Amendment. Fontana, 262 F.3d at 880 . Under the Eighth 25 Amendment, “[a] sexual assault on an inmate by a guard . . . is deeply offensive to human 26 dignity.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), see e.g. Hill v. Rowley, — 27 — 658 Fed.Appx. 840, 841 (9th Cir. 2016) (holding that an allegation that a prison official 28 gripped an inmate’s buttock with sexual intent states an Eighth Amendment claim). 1 Accordingly, Plaintiff’s allegations that Defendant Roddy, while acting in his 2 capacity as a Deputy Sheriff, touched Plaintiff’s left buttock with sexual intent, 3 masturbated in front of him and ejaculated onto his bedsheets, all while Plaintiff was 4 handcuffed to the bed and pressing the emergency call button for help, if proven, would 5 constitute evidence such that a “jury might return a verdict in his favor” on his 42 U.S.C. 6 § 1983 claim for a violation of his rights under the United States Constitution. Anderson, 7 477 U.S. at 257; Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (“Section 1983 8 creates a private right of action against individuals who, acting under color of state law, 9 violate federal constitutional or statutory rights.”) 10 1. Defendant has carried his burden of showing an absence of a genuine issue of material fact in dispute — 11 — 12 For the following reasons, Defendant Roddy has satisfied his initial burden of 13 showing “the absence of a genuine issue as to any material fact.” Adickes, 398 U.S. at 157 . 14 In order to avoid summary judgment, Plaintiff must present “specific facts showing that 15 there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The Court may not weigh 16 evidence or make credibility determinations, and any inferences drawn from the facts must 17 be viewed in the light most favorable to the nonmoving party. Id. at 255. Plaintiff’s 18 evidence need only be such that a “jury might return a verdict in his favor.” Id. at 257. 19 Beginning with the forensic evidence, Plaintiff contends the references to “fitted 20 sheet” used by the attorneys litigating this case rather than the proper nomenclature of “flat 21 sheet” and “mattress sheet” used by the Detectives who seized the sheet and the laboratory 22 testing personnel, renders it is unclear whether both sheets from Plaintiff’s bed were tested. 23 (ECF No. 92 at 4.) He also contends the chain of custody is broken because Detective Vars 24 stored the evidence in her desk drawer for 19 days before sending it to the testing 25 laboratory. (Id.) These contentions have no merit. 26 In his initial interview with Detectives Vars and Snelling, which was recorded 27 without Plaintiff’s knowledge, Plaintiff reported that a tall black corporal entered his room, 28 hit him on the head, turned him over, took his gown off, penetrated his anus with his penis 1 by thrusting either three or four times or six or seven times, and wiped his penis on the 2 bedsheet after ejaculating on the sheet, all while another black officer stood in the doorway 3 and watched. (ECF No. 89-2 at 43-47.) Plaintiff agreed to undergo a SART examination. 4 (Id. at 53.) Detective Vars states in her declaration that she and Detective Snelling left the 5 room, retrieved evidence bags from Snelling’s car, returned to the room and collected as 6 evidence a pillow case in which Plaintiff had placed a bedsheet and his gown, which she 7 assigned evidence item #1.000, and a mattress sheet which she assigned evidence item 8 #2.000. (ECF No. 89-13 at 3.) Defendant presents an incident report indicating that a “bed 9 sheet, hospital gown and pillow case” were seized from Plaintiff’s room and assigned 10 evidence code #1.000, a “mattress sheet” was seized and assigned evidence code #2.000, 11 and an oral DNA swab from Plaintiff was seized and assigned evidence code #3.000. (ECF 12 No. 89-2 at 13.) Photographs taken by the police and by Bode Technologies of the sheets, 13 gown and pillowcase are attached to the summary judgment motion. (Id. at 18-29.) 14 Detective Vars states in her declaration that while she was collecting the sheets and 15 gown, Plaintiff spontaneously told her he had not been raped, after which she left the room, 16 gave Detective Snelling the evidence, returned to the room with a voice recorder and told 17 Plaintiff the interview was going to be recorded. (Id.) During that interview Plaintiff stated 18 that the tall black corporal walked around his room but did not touch him or rape him, and 19 that the other black officer was standing in the doorway watching as the tall black corporal 20 masturbated and ejaculated on the sheet which he had just given the detectives as evidence. 21 (ECF No. 89-2 at 66-69.) Although Plaintiff first said the officer did not touch him, he 22 later said the officer touched his butt cheek once with his hand without penetrating his anus 23 with his finger. (Id. at 66-67, 72, 75.) Detective Vars collected a DNA swab from 24 Plaintiff’s mouth and told him a SART examination would not be performed because he 25 was no longer alleging penetration. (Id. at 70-72.) 26 Defendant presents the declaration of Laura E. Dolan, a Senior San Diego County 27 Deputy County Counsel, indicating she sent evidence items #1.000 and #2.000 to Bode 28 Technology for testing at Plaintiff’s request. (ECF No. 93-1 at 3.) Although the bedsheet 1 in evidence item #1.000 is referred to in the seizure report as a “sheet” and the bedsheet in 2 evidence item #2.000 is referred to in the seizure report as a “mattress sheet,” in her 3 submission to Bode Technology she “mistakenly referred to the ‘bed sheet’ described in 4 Property Item #1.000 as a ‘flat sheet’ and the ‘mattress sheet’ described in Property Item 5 #2.000 as a ‘fitted sheet.’” (Id. at 3.) She states she never saw or handled the evidence, 6 and because Plaintiff alleged Defendant had ejaculated on his sheets only the sheets were 7 tested, not the gown or pillowcase. (Id. at 3-4.) The two bedsheets were sent to Bode 8 Technologies from the San Diego County Sheriff’s Department Property and Evidence 9 Unit on March 12, 2019, and Bode Technology was instructed to maintain the chain of 10 custody at all times. (Id. at 5.) The Bode Technology report refers to the bedsheets as a 11 “Sheet” gathered by the inmate in a pillow case and identified as evidence item #1.000, 12 and a “Hospital Bed Sheet, Mattress Sheet” as evidence item #2.000. (ECF No. 89-2 at 13 31.) The report states no semen was detected in evidence item #1.000, and evidence item 14 #2.000 tested negative for seminal fluid but was not tested for semen. (Id.) 15 Defendant presents the declaration of Stacey Liberatore, a San Diego County Senior 16 Litigation Investigator, who states she was involved in procuring cost estimates for testing 17 the bedsheets. (ECF No. 98-2 at 1-2.) She states that in her communications with Bode 18 Technology she referred to the items as a “flat sheet” and “fitted sheet” as a “simple way 19 of distinguishing between the two sheets” which she never personally saw or handled. (Id. 20 at 2.) On March 6, 2019, Liberatore contacted Flavio Alfaro, the Evidence Custodian of 21 the San Diego County Sheriff’s Department Property/Evidence Unit and requested he 22 locate items #1.000 and #2.000 and send them via overnight delivery to Bode Technology. 23 (Id. at 2-3.) She was informed on or about March 12, 2019 by Alfaro that he had sent items 24 #1.000 and #2.000 to Bode Technology via Federal Express overnight delivery. (Id. at 3.) 25 Accordingly, there is no merit to Plaintiff’s contention that the references to “fitted 26 sheet” by the attorneys litigating this case renders it unclear whether both sheets from 27 Plaintiff’s bed were tested by Bode Technology. (ECF No. 92 at 4.) Detective Vars states 28 that when she left the hospital she placed the evidence in its evidence bag in a locked 1 drawer of her assigned desk at her office, that the items were later photographed by her 2 office and then turned over to the San Diego Sheriff’s Office Property/Evidence Unit on 3 July 14, 2016. (ECF No. 89-13 at 4.) There is no merit to Plaintiff’s contention the chain 4 of custody is not intact or resulted in the spoliation of evidence merely because there was 5 a 19-day gap between seizing the items and turning them over to the property unit, or by 6 Detective Vars storing the items in the property bag in which they were originally placed 7 in her locked desk drawer. 8 To recap with respect to the forensic evidence, Plaintiff initially reported to the 9 police he had been hit in the head and raped. When he was told a SART examination 10 would be performed and his statement would be recorded, he changed his story to a deputy 11 entering his room and masturbating without touching him. He then changed his story to 12 the deputy hitting him on the head and masturbating onto his bedsheet. He finally changed 13 his story to the deputy touching his left buttock with one hand after which he masturbated 14 onto a bedsheet which he retained and personally handed to Detective Vars as evidence. 15 The record supports a finding that the chain of custody of the bedsheet identified by 16 Plaintiff as having been ejaculated upon is intact and that it tested negative for semen. 17 Accordingly, viewing the evidence in the light most favorable to Plaintiff, and drawing any 18 inferences in his favor, Defendant has carried his burden of showing “the absence of a 19 genuine issue as to any material fact” with respect to whether he ejaculated onto Plaintiff’s 20 bedsheet. Adickes, 398 U.S. at 157 . 21 Defendant next contends Plaintiff has failed to come forward with evidence to show 22 his allegations are not the result of delusions, hallucinations or a confusion of mind which 23 numerous eyewitnesses observed him exhibiting, and which two doctors, a treating 24 physician and an expert witness, have opined are symptoms of Dilantin toxicity. Defendant 25 first presents evidence Plaintiff misidentified Defendant Roddy as his assailant, who he 26 described in his deposition as having short hair. (ECF No. 89-2 at 136.) Defendant Roddy 27 states in his own declaration that he is bald and had no hair on his head on the date in 28 question. (ECF No. 89-3 at 2-3.) Defendant also presents evidence Plaintiff misidentified 1 Corporal Rodriguez. As set forth below, Plaintiff stated in his deposition he knew Deputy 2 Rodriguez because “he had been taking me to court,” and knew his rank was Corporal. 3 (ECF No. 89-2 at 161.) However, Deputy Osmark Gonzalez states that on July 1, 2016, 4 less than a week after the alleged assault, he overheard Plaintiff make incoherent statements 5 about being sexually molested by “Colonel Rodriguez.” (ECF No. 89-14 at 1-2.) As set 6 discussed below, Plaintiff states in his declaration in opposition to summary judgment that 7 Deputy Gonzalez is lying, that events which took place a week after the assault are not 8 relevant, and that Defendant Roddy had hair on his head on the day of the incident. (ECF 9 No. 92-1 at 4, 8.) The Court will not make credibility determinations in those respects, 10 but, as will be seen, those disputes do not raise triable issues of fact. 11 When Plaintiff arrived at the hospital Dr. Nguyen diagnosed him with acute toxic 12 encephalopathy and Dilantin toxicity, noted a chief complaint of “altered mental status” 13 with symptoms of confusion and agitation, and noted he was taking Risperdal, a 14 psychotropic medication used to treat manic patients, and Zoloft, an anti-depressant used 15 to treat depression and bipolar disorder. (ECF No. 89-2 at 170-83.) Dr. Nguyen found the 16 Dilantin in Plaintiff’s system was at a level where a patient would experience symptoms 17 of dizziness, lightheadedness, unsteady gait, double vision, confusion and agitation, and he 18 was still suffering from acute toxic encephalopathy and Dilantin toxicity during a follow19 up visit two days later. (Id. at 183, 188, 192-93.) Nurses Manongsong and Gorski, 20 Deputies Clark and Rodriguez, and Detectives Vars and Snelling all stated that around the 21 time of the alleged assault Plaintiff was incoherent, manic, hearing voices and 22 hallucinating. (ECF No. 89-1 at 26-27; ECF No. 89-8 at 1-2; ECF No. 89-10 at 2-4; ECF 23 No. 89-11 at 3; ECF No. 89-12 at 2; ECF No. 89-13 at 4; ECF No. 89-15 at 2.) In his 24 declaration in opposition to summary judgment, Plaintiff states that Nurse Manongsong’s 25 observation that he was hallucinating is false, but he does not dispute or challenge the 26 observations by Nurse Gorski, Deputies Clark and Rodriguez, or Detectives Vars and 27 Snelling that he was delusional and hallucinating. (ECF No. 82-1 at 9.) 28 / / / 1 Dr. Clark, a toxicologist retained as an expert witness, opines that Plaintiff was 2 suffering severe Dilantin toxicity when admitted on June 24, 2016 until his discharge on 3 June 29, 2016. (ECF No. 89-5 at 1-3.) Dr. Clark opines, to a “reasonable medical 4 probability,” that Plaintiff’s Dilantin toxicity caused or contributed to the delusions, 5 paranoia, hallucinations, confusion and agitation observed in his behavior during his 6 hospital stay, and “his claim of being sexually molested is most likely related to a 7 hallucination or delusion[al] belief related to his [Dilantin] toxicity, perhaps coupled with 8 psychiatric disorders and other medical problems.” (Id. at 3.) Plaintiff challenges that 9 testimony by observing in his declaration that Dr. Clark never examined him and therefore 10 his opinion is “akin to hearsay,” and stating that his anti-psychotic medications were 11 discontinued on June 22 due to his Dilantin overdose. (ECF No. 92-1 at 6, 8.) 12 Finally, Defendant argues it was impossible for anyone to spend 10-15 minutes in 13 Plaintiff’s room sexually assaulting or harassing him with Plaintiff pressing the emergency 14 call button the entire time and another deputy coaching or cheering an assailant on over a 15 loudspeaker or intercom without drawing attention. He presents the evidence detailed 16 above that the room is in a heavily-trafficked area of the hospital with as many as 25 peace 17 officers routinely present, with a large window in his room into the corridor, and under 18 continuous video surveillance from the nearby nurse station where the emergency call 19 button would have alerted nurses or other deputies of an emergency. Plaintiff makes no 20 effort to challenge that evidence. 21 Accordingly, Defendant Roddy has presented evidence that the bedsheet Plaintiff 22 collected as evidence and turned over to the investigating detectives on which he claims he 23 observed Defendant ejaculate tested negative for semen, has presented evidence that the 24 assault as alleged could not have happened without hospital staff being alerted, which it 25 was not, and has presented evidence that the lack of such evidence, which would be 26 expected to exist if Plaintiff’s allegations were true, is explained by medical and eyewitness 27 evidence that he was delusional and hallucinating at the time of the alleged assault due to 28 the overdose for which he was hospitalized which an expert witness testified to a medical 1 probability caused him to invent the assault, and which he admitted to a nurse that he 2 invented due to his overdose. Defendant has satisfied his initial burden of showing “the 3 absence of a genuine issue as to any material fact” with respect to whether his behavior 4 was “so egregious, so outrageous, that it may fairly be said to shock the contemporary 5 conscience,” or that he engaged in “unreasonable, non-consensual, inappropriate” sexual 6 harassment of a “helpless, handcuffed, and frightened” person. Adickes, 398 U.S. at 157 ; 7 Fontana, 262 F.3d at 880 , 882 n.7; Lewis, 523 U.S. at 846 . 8 2. Plaintiff has not carried his burden of identifying specific facts showing a genuine issue of material fact for trial — 9 — 10 Plaintiff must now come forward with “specific facts showing that there is a genuine 11 issue for trial” in order to avoid summary judgment. Anderson, 477 U.S. at 256. He must 12 make “a showing sufficient to establish the existence of an element essential to that party’s 13 case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 14 U.S. at 322. 15 He attempts to do so with this sworn deposition testimony stating that he witnessed 16 the assault himself, as well as his sworn declaration in opposition to summary judgment in 17 which he claims some of the eyewitnesses are lying. With respect to Plaintiff’s sworn 18 testimony, the Court may not weigh evidence or make credibility determinations, and any 19 inferences drawn from the underlying facts must be viewed in the light most favorable to 20 Plaintiff. Anderson, 477 U.S. at 255. Plaintiff need only come forward with evidence such 21 that a “jury might return a verdict in his favor.” Id. at 257. 22 Plaintiff testified in his deposition that he may have reported he was raped when he 23 saw Deputy Rodriguez and Defendant Roddy pass each other in front of his room about 30 24 minutes after the alleged incident, when a nurse and a red-headed deputy had been in his 25 room for about one or two minutes. (ECF No. 89-2 at 159-63.) He is heard in his recorded 26 interview stating numerous times that he was raped. (Id. at 44-50.) In his declaration in 27 opposition to summary judgment, dated about three months after his deposition, he 28 categorically denies ever making any allegations of rape to anyone, and says Detectives 1 Vars and Snelling, Nurse Gorski, and Deputy Rodriguez have all falsely stated he did. 2 (ECF No. 92-1 at 9-11.) 3 “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by 4 an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., — 5 — 952 F.2d 262, 266 (9th Cir. 1991) (“[I]f a party who has been examined at length on 6 deposition could raise an issue of fact simply by submitting an affidavit contradicting his 7 own prior testimony, this would greatly diminish the utility of summary judgment as a 8 procedure for screening out sham issues of fact.”) Plaintiff “is not precluded from 9 elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on 10 deposition,” and “minor inconsistencies that result from an honest discrepancy, a mistake, 11 or newly discovered evidence afford no basis for excluding an opposition affidavit.” 12 Messick v. Horizon Indus., 62 F.3d 1227 , 1231 (9th Cir. 1995). 13 In categorically stating in his declaration that Nurse Gorski, Deputy Rodriguez and 14 Detectives Vars and Snelling are all lying by stating he initially claimed he was raped (and 15 by implication that Nurse Gorski lied when he said Plaintiff then apologized for falsely 16 claiming rape and admitted he did not know what made him do it), despite the fact that he 17 acknowledged during his deposition testimony he may have made such an allegation, and 18 despite the fact that an audio recording of him making such an allegation is in the record, 19 Plaintiff is not elaborating or clarifying his deposition testimony, nor clearing up a mistake 20 or honest discrepancy, but is flatly contradicting his prior sworn deposition testimony. His 21 declaration is unavailable to challenge the evidence he falsely alleged rape because it was 22 executed after his deposition, and because it was executed after the summary judgment 23 motion was filed which itself includes and relies on Plaintiff’s recorded interviews. 24 Kennedy, 952 F.2d at 266-67 (holding that a court may discount a declaration that “flatly 25 contradicts” earlier deposition testimony). 26 Nurse Gorski states in his declaration that on the day of the incident Plaintiff 27 “accused multiple African-American deputies” of raping him that day, including any 28 African-American deputy who passed his room without distinguishing between them, and 1 later apologized and said: “I don’t know why I am saying this.” (ECF No. 89-12 at 2.) 2 Plaintiff’s challenge to that declaration is to claim in his own declaration that Nurse Gorski 3 and anyone who says he made a rape accusation is lying, which contradicts his deposition 4 testimony and his own statements in his recorded interview. Although Plaintiff was asked 5 during his recorded interview if he made that statement to Nurse Gorski, his response is 6 incoherent (ECF No. 89-2 at 46), as are many of his responses to many questions during 7 his interviews and deposition testimony. 8 Plaintiff admitted in his deposition that: “I don’t have a clue” why no semen was 9 found on the bedsheet which he himself handed to the detectives to be taken into evidence. 10 (ECF No. 89-2.) His legal challenge to the chain of custody and testing protocol fails, and 11 he offers no evidence to counter Defendant’s expert medical testimony that his statement, 12 which has changed from being raped to being held at gunpoint while an officer masturbated 13 in front of him and ejaculated onto his bed, is a result of delusional and hallucinatory 14 behavior brought on by his Dilantin overdose. Nor has he presented any evidence to 15 challenge Defendant’s evidence it was impossible for the alleged assault to have gone 16 unnoticed by hospital staff or passersby, or to counter the numerous eyewitness accounts 17 he was delusional and hallucinating at the time. 18 The Court acknowledges Plaintiff may well harbor a sincere belief he was sexually 19 assaulted, and there is no question his allegations, if proven, would constitute deplorable 20 and unconstitutional acts by a peace officer. However, he has failed to satisfy his burden 21 of showing there is a genuine issue of material fact in dispute which a trial is necessary to 22 resolve. The only evidence he presents to counter Defendant’s evidence that he was 23 observed in a delusional state, hallucinating and accusing every African-American officer 24 who passed his room of rape, and that he apologized for doing so afterward and admitted 25 he had no idea why he made such allegations, is his declaration in opposition to summary 26 judgment in which he claims anyone who says he ever alleged rape is lying, which itself is 27 contradicted by his deposition testimony and his recorded statement making such 28 allegations. As explained above, he cannot create a genuine issue of material fact to the 1 extent his post-deposition declaration contradicts his deposition testimony acknowledging 2 he may have made such allegations. See Kennedy, F.2d at 266 (“[I]f a party who has been 3 examined at length on deposition could raise an issue of fact simply by submitting an 4 affidavit contradicting his own prior testimony, this would greatly diminish the utility of 5 summary judgment as a procedure for screening out sham issues of fact.”) 6 In sum, Defendant has presented evidence that: (1) although Plaintiff claims 7 Defendant ejaculated onto a bedsheet which Plaintiff maintained in his possession and 8 personally handed to detectives as evidence, no semen was found on the sheet, (2) Nurse 9 Gorski heard Plaintiff accuse every African-American deputy who passed his room of rape 10 and heard him later say he had invented allegations of rape without knowing why, (3) the 11 events could not have gone unnoticed by hospital staff and the numerous peace officers 12 routinely assigned to the hospital unit as Plaintiff described it, namely, that a Deputy 13 Sheriff pointed a gun with one hand at a hospital patient and masturbated with the other 14 hand for 10-15 minutes while another deputy coached and encouraged him over an 15 intercom while the patient was pressing an emergency call button the entire time in a room 16 under continuous video surveillance from a nearby nurse station with a large window into 17 the hallway in a busy area of the hospital, and (4) eyewitness and expert medical testimony 18 that Plaintiff’s allegations of rape and sexual assault/harassment were the product of 19 hallucinatory and delusional behavior brought on by Dilantin toxicity. 20 Rather than “present specific facts showing that there is a genuine issue for trial,” 21 Plaintiff admitted in his deposition he does not know why the bedsheets tested negative for 22 semen, told Nurse Gorski he did not know what made him falsely accuse people walking 23 past his room of rape, and provides no facts to counter the eyewitness and expert testimony 24 that his allegations are the product of a confused state of mind brought on by his medication 25 overdose. To his credit he does not allege a hypothetical conspiracy to hide or destroy 26 evidence or present false and perjured eyewitness evidence against him, but admits he is 27 unable to say why he cannot identify specific facts showing there is a genuine issue for 28 trial. His attempt to do so with those portions of his declaration which contradict his 1 deposition testimony is legally insufficient, and his attempt to do so with those portions of 2 his declaration which contradict his recorded interview is factually insufficient. 3 Without making a credibility determination regarding Plaintiff’s sworn testimony, 4 his evidence that Defendant Roddy masturbated in front of him and ejaculated onto his 5 bedsheets is not such that a “fairminded jury could return a verdict for him on the evidence 6 presented.” Anderson, 477 U.S. at 255-57; see Kennedy v. Applause, Inc., 90 F.3d 1477 , 7 1481 (9th Cir. 1996) (finding that uncorroborated self-serving deposition testimony which 8 flatly contradicts plaintiff’s prior statements and the medical evidence insufficient to raise 9 a genuine issue of fact to defeat summary judgment). Plaintiff has not come forward with 10 evidence that Defendant Roddy took actions which amount to “unreasonable, non11 consensual, inappropriate touching” of a “vulnerable,” “helpless, handcuffed, and 12 frightened” person, or that his behavior was “so egregious, so outrageous, that it may fairly 13 be said to shock the contemporary conscience.” Fontana, 262 F.3d at 880 , 882 n.7; Lewis, — 14 — 523 U.S. at 846 . 15 Finally, as to Plaintiff’s Fourteenth Amendment claim for invasion of privacy and 16 sexual assault/harassment based on his allegation that Defendant Roddy touched his left 17 buttock for “a quick second,” although such touching with a sexual intent could amount to 18 a constitutional violation, see Rowley, 658 Fed.Appx. at 841 , Plaintiff’s only evidence of 19 sexual intent is his statement to the detectives and his deposition testimony that Defendant 20 masturbated in front of him and ejaculated on his bed. As set forth above, he initially told 21 the detectives that Defendant Roddy hit him in the head and raped him, then said he had 22 not been touched, and then said he had been touched on the left buttock after which 23 Defendant masturbated and ejaculated on his bedsheets. Plaintiff’s statement to the 24 detectives that he was never touched is somewhat ambiguous, as he may have been 25 attempting to say he was never touched by Defendant Roddy’s penis. (See ECF No. 89-2 26 at 66-67.) He stated in his deposition that Defendant touched his left buttock under his 27 gown with one hand for “a quick second.” (Id. at 144-47, 152.) Even assuming Defendant 28 Roddy’s hand touched Plaintiff’s left buttock, Plaintiff claims a continuous course of 1 ||sexual harassment by Defendant Roddy of entering his room, threatening harm if he did 2 ||not do as he was told, touching his buttock, masturbating in front of him and ejaculating 3 his bedsheets. Plaintiffs failure to come forward with evidence showing Defendant 4 ||Roddy masturbated and ejaculated on his sheets is also a failure to come forward with 5 || evidence of sexual intent in touching his buttock. 6 Accordingly, to the extent Plaintiff's Fourteenth Amendment sexual assault and 7 || harassment claim rests on his allegation that Defendant Roddy touched his left buttock with 8 ||one hand for “fa quick second,” which requires him to show Defendant Roddy’s behavior 9 |;amounts to “unreasonable, non-consensual, inappropriate touching” of a “vulnerable,” 10 || “helpless, handcuffed, and frightened” person, Fontana, 262 F.3d at 880 , or that his 11 |}behavior was “so egregious, so outrageous, that it may fairly be said to shock the 12 |}contemporary conscience,” Lewis, 523 U.S. at 846 , Plaintiff's evidence is not such that a 13 || ‘fairminded jury could return a verdict for him on the evidence presented.” Anderson, 477 14 at 255-57. 15 ||/IV. Conclusion and Order 16 Based on the foregoing, IT IS ORDERED that Defendant’s Motion for summary 17 judgment (ECF No. 89) is GRANTED. 18 The Clerk of Court shall enter judgment in favor of Defendant Corporal Michael 19 || Roddy and close the file. 20 IT IS SO ORDERED. 21 Dated: January 8, 2020 lau 44 ( Ay 22 Hon. Larry Alan Burns 73 Chief United States District Judge — 24 — — 25 — — 26 — — 27 — — 28 —