1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *
4 TERON FRANKLIN, Case No. 3:18-CV-0522-CLB
5 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 6 v. SUMMARY JUDGMENT AND DENYING AS MOOT MOTION FOR 7 STATE OF NEVADA, et al., RECONSIDERATION1
8 Defendants. [ECF Nos. 75, 117]
9 10 This case involves a civil rights action filed by Plaintiff Teron Franklin (“Franklin”) 11 against Defendants Gregory Martin (“Martin”) and Julio Mesa (“Mesa”) (collectively 12 referred to as “Defendants”). Currently pending before the Court is Defendants’ motion 13 for summary judgment. (ECF Nos. 75, 76, 78.)2 Franklin opposed the motion, (ECF No. 14
15 1 The parties have voluntarily consented to have this case referred to the undersigned to conduct all proceedings and entry of a final judgment in accordance with 16 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 101.)
17 2 ECF No. 76 is an appendix of exhibits filed in support of Defendants’ motion for 18 summary judgment. ECF No. 78 consists of Franklin’s medical records filed under seal.
19 Under the Local Rules, all electronically filed documents that are filed with exhibits or attachments must comply with the following requirements: (1) “[e]xhibits and 20 attachments must not be filed as part of the base document in the electronic filing system. They must be attached as separate files; and” (2) “[e]xhibits and attachments that must 21 be separated due to size must be individually identified when they are filed in the court’s 22 electronic filing system. (Example: “Affidavit of Joe Smith,” pages 1–30; Affidavit of Joe Smith,” pages 31–45, etc.”).” LR IC 2-2(3)(A)-(B) (emphasis added). The Court may strike 23 documents that do not comply with these rules. See LR IC 7-1.
24 Here, the motion for summary judgment consists of a main document with 24 pages and a separately filed appendix of exhibits with 119 pages. (ECF Nos. 75, 76.) 25 Because the appendix does not individually identify each exhibit and file them 26 accordingly, the appendix has been filed improperly. While the Court has a basis to strike this filing, under the circumstances and given the Court’s ultimate finding that summary 27 judgment is not warranted, the document will not be stricken in this instance. However, the Court cautions the Office of the Attorney General that further violations of this rule will 1 107), and Defendants replied. (ECF No. 119.) Also pending before the Court is Franklin’s 2 motion to reconsider, (ECF No. 117), to which Defendants responded, (ECF No. 118). 3 For the reasons stated below, Defendants’ motion for summary judgment, (ECF No. 75), 4 is granted in part and denied in part, and Franklin’s motion to reconsider, (ECF No. 117), 5 is denied as moot. 6 I. FACTUAL BACKGROUND 7 Franklin is an inmate in the custody of the Nevada Department of Corrections 8 (“NDOC”). The events related to this case occurred while Franklin was housed at 9 Southern Desert Correctional Center (“SDCC”) and Ely State Prison (“ESP”). The basis 10 of Franklin’s lawsuit stems from an alleged excessive force incident and lack of medical 11 care following the incident. 12 A. Use of Force Incident 13 On January 21, 2017, Franklin was housed at SDCC Unit Five Wing A. (ECF No. 14 76 at 7.) On the same date, Defendant Mesa was serving as a correctional officer in Unit 15 Five Wing A. (Id. at 10.) A use of force incident occurred between Defendant Mesa and 16 Franklin on this date. (Id.) Mesa used force to remove Franklin from his cell, to place 17 Franklin against a wall in order to place restraints on Franklin. (ECF No. 18 at 17-18.) 18 In his verified complaint3, Franklin states the following, which is disputed by 19 Defendants: On January 21, 2017, Mesa crept down the hallway with the lights out and 20 “snatched” Franklin’s cell door open with a large can of mace. (ECF No. 18 at 16.) Mesa 21 “manhandled” Franklin and handcuffed Franklin in the dark hallway. (Id.) Mesa grabbed 22 Franklin around his neck, flipped Franklin on his face and neck, and busted Franklin’s 23 right eye and head. (Id. at 17-18.) Franklin was partially paralyzed on the right side of his 24 body and leg and there was blood all over the hallway where the assault took place. (Id. 25
26 3 “A verified complaint may be treated as an affidavit to oppose summary judgment to the extent it is ‘based on personal knowledge’ and ‘sets forth specific facts admissible 27 in evidence.’” Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (quoting McElyea v. Babbitt, 833 F.2d 196, 197-98 & n.1 (9th Cir. 1987) (per curiam)) amended by 135 F.3d 1 at 18.) That same day, prison officials took Franklin to Valley Hospital where medical 2 professionals gave Franklin stitches around his eye and diagnosed Franklin with a 3 concussion. (Id.) 4 According to the incident report and a declaration filed by Defendant Mesa, the 5 following occurred: On January 21, 2017, Mesa was on duty in Unit Five walking through 6 Wing A when he saw Franklin wearing unauthorized orange pants. (ECF No. 76 at 12- 7 13.) Mesa went to Franklin’s cell to address the wearing of unauthorized clothing. (Id.) 8 Mesa unlocked the cell and requested the occupants exit. (Id.) Franklin’s cellmate was 9 immediately compliant with the order, but Franklin became agitated. (Id.) Mesa ordered 10 Franklin to exit his cell again, but Franklin raised his voice and demanded that he be 11 allowed to get dressed, despite already having a t-shirt and pants on. (Id.) Mesa permitted 12 Franklin to put on his shoes and begin putting on a long sleeve thermal top, during which 13 time Franklin remained agitated. (Id.) 14 Franklin dropped to one knee after putting on his thermal top and began reaching 15 under the bottom bunk, but Mesa could not see what Franklin was reaching for. (Id.) Mesa 16 immediately moved in to remove Franklin from the cell by restraining his arms. (Id.) Mesa 17 reasonably feared that Franklin was attempting to grab something that may have been a 18 weapon. (Id. at 116-117.) Once Mesa cleared the doorway, he moved Franklin against 19 the wall to place him in restraints. (Id. at 12-13.) 20 Franklin began resisting and attempting to free himself. (Id.) In an attempt to gain 21 compliance Mesa used verbal commands ordering Franklin to stop resisting, but Franklin 22 continued resisting. (Id.) By this time, an additional correctional officer arrived and 23 assisted in trying to restore order by placing Franklin’s cellmate in restraints. (Id. at 15.) 24 This correctional officer witnessed Franklin resisting and being uncooperative with Mesa’s 25 attempt to retain order. (Id.) Mesa became fearful that he was losing control of Franklin’s 26 body because of the resistance, so Mesa placed Franklin on the floor to complete his 27 placement of the restraints. (Id. at 12-13.) 1 Mesa continued using verbal commands to gain control of Franklin and place 2 restraints while on the ground. (Id.) Mesa ordered Franklin to place his right hand behind 3 his back, but Franklin placed his right palm on the ground and began pressing himself up 4 with his arm and his knees. (Id.) Fearing Franklin may free himself, Mesa pressed down 5 on Franklin’s neck to gain control. (Id.) Franklin’s head hit the ground and caused a 6 laceration over his right eye. (Id.) At this time another correctional officer, Harris, arrived 7 and attempted to assist Mesa in gaining control of Franklin. (Id. at 14.) Harris used verbal 8 commands ordering Franklin to stop resisting, but Franklin did not comply. (Id.) Finally, 9 Mesa was able to gain control of Franklin’s right arm, but Franklin continued to grab at 10 the restraints in an attempt to free himself. (Id. at 13.) Eventually, Mesa successfully 11 restrained Franklin and Franklin was transported to medical by other officers who arrived 12 on the scene. (Id.) Mesa feared injury to himself, fellow correctional officers, and/or other 13 inmates if Franklin freed himself from his attempts to restrain. (Id. at 116-117.) 14 An independent panel reviewed this use of force incident for any violation of 15 regulations, procedures, or the law. Their review concluded: (1) the use of force was 16 “warranted and not excessive;” (2) Mesa used only “the amount of force necessary to 17 gain compliance;” and (3) the incident was not preventable because Franklin’s behavior 18 was unpredictable. (Id. at 22-23.) 19 B. Medical Treatment 20 The use of force resulted in a laceration over Franklin’s eye. (ECF No. 18 at 18; 21 ECF No. 76 at 10, 27.) Once Franklin was transferred to medical for an assessment, CNII 22 Jason Carmichael noted Franklin was walking without assistance; was alert, oriented to 23 person, place, time, and situation; and had a half-inch superficial laceration on the upper 24 outer right eye that was clotted and drying. (ECF No. 76 at 18.) 25 Following this medical assessment, Franklin was transported to Valley Hospital, 26 where Emergency Room staff diagnosed Franklin with a contusion of the head. (ECF No. 27 78-1 at 3 (sealed).) In addition to placing sutures in the laceration above Franklin’s eye, 1 lacerations on the face and head injury, no wake-up. (Id. at 4-8.) These materials stated, 2 “You have a head injury. It does not appear serious at this time. Symptoms of a more 3 serious problem (concussion, bruising, or bleeding in the brain) may appear later. 4 Therefore, watch for the WARNING SIGNS listed below.” (Id. at 7.) Valley Hospital 5 recommended following-up with “the primary care doctor at the jail in 7 days for suture 6 removal.” (Id. at 4.) 7 Medical staff removed Franklin’s sutures on January 28, 2017 and noted that his 8 wound was “dry [with] scabs noted wound cleaned & covered w/ dry dressing . . . no signs 9 of infection.” (ECF No. 78-2 at 3 (sealed).) 10 On February 22, 2017, Franklin was transferred to and housed at ESP. (ECF No. 11 76 at 7.) On the same day, medical staff noted he was received at ESP with his keep on 12 person (“KOP”) medications. (ECF No. 78-2 at 3 (sealed).) Franklin wrote numerous 13 medical kites following the January 21, 2017 use of force incident. (ECF No. 78-3 14 (sealed).) 15 In his verified complaint, Franklin asserts after he was taken to Valley Hospital, he 16 was given stitches around his eye and was diagnosed with a concussion. (ECF No. 18 at 17 18.) Franklin further asserts that upon transfer to ESP following the use of force incident, 18 medical staff refused to acknowledge Franklin’s injuries. (Id. at 19.) After Franklin wrote 19 to ESP medical several times, the medical staff told Franklin three times that they would 20 schedule a neurologist appointment for him but never did. (Id.) When Franklin saw Dr. 21 Martin at ESP, Dr. Martin pointed his finger at Franklin and said, “pow” as if he had just 22 shot Franklin in the head. (Id. at 20.) Dr. Martin and the ESP medical staff refused to 23 acknowledge the orders from Valley Hospital. (Id.) As a result, Franklin asserts he had to 24 remove his own stitches from his eye area. (Id.) 25 On January 31, 2017, Franklin filed Grievance 2006-30-41910, as an appeal from 26 the disciplinary action taken as a result of the January 21, 2017 incident. (ECF No. 76 at 27 59-76.) The second level appeal was denied and received by Franklin on October 24, 1 II. PROCEDURAL HISTORY 2 On October 23, 2018, Franklin filed a civil rights complaint pursuant to 42 U.S.C. 3 § 1983 alleging several violations of his First, Fifth, and Eighth Amendment rights. (ECF 4 No. 1-1.) On August 6, 2019, the District Court entered a screening order dismissing the 5 entire complaint with prejudice, finding Franklin’s factual allegations were “fanciful, i.e., 6 fantastic or delusional scenarios.” (ECF No. 6.) Franklin filed a motion for reconsideration, 7 (ECF No. 9), which the District Court denied. (ECF No. 10.) On October 24, 2019, Franklin 8 filed a Notice of Appeal to the United States Court of Appeals, Ninth Circuit. (ECF No. 9 11.) On March 13, 2020, the Ninth Circuit issued an order affirming in part, reversing in 10 part, and remanding Franklin’s case. (ECF No. 13.) Specifically, the Ninth Circuit affirmed 11 the dismissal of the complaint as frivolous, with the exception of allegations raised in 12 paragraphs 104 to 106 concerning an incident of assault by a correctional officer. (Id.) 13 Thus, the case was remanded to allow Franklin leave to file an amended complaint 14 concerning the allegations in 104 to 106 only. (Id.) 15 On April 13, 2020, the District Court directed the Clerk to vacate the original 16 screening order, (ECF No. 6), and Judgment, (ECF No. 8), and reopen the case to allow 17 Franklin to file an amended complaint on the allegations in paragraphs 104 to 106 in 18 Franklin’s original complaint only. (ECF No. 17.) 19 Thus, on April 28, 2020, Franklin filed his amended complaint pursuant to 42 20 U.S.C. § 1983 alleging Defendants used excessive force against him while he was 21 incarcerated at SDCC and were deliberately indifferent to his serious medical needs after 22 the alleged excessive force incident upon transfer to ESP. (ECF No. 18.) On July 9, 2020, 23 the District Court screened the complaint pursuant to 28 U.S.C. § 1915A, and permitted 24 Franklin to proceed on an excessive use of force claim under the Eighth Amendment 25 against Defendant Mesa, and a deliberate indifference to serious medical needs claim 26 against Defendants Martin and Doe ESP medical staff. (ECF No. 19.) The Court 27 dismissed without prejudice a First Amendment retaliation claim, as well as dismissed 1 On March 9, 2022, Defendants filed their motion for summary judgment arguing 2 this case should be dismissed because: (1) Franklin failed to file his complaint before the 3 statute of limitations; (2) Franklin failed to exhaust his administrative remedies regarding 4 allegations of deliberate indifference to a serious medical need; (3) Defendant Martin did 5 not personally participate in the alleged violations; (4) Defendant Mesa used force in a 6 good faith attempt to maintain control of Franklin; (5) Defendant Martin was not 7 deliberately indifferent to a serious medical need; and (6) Defendants are entitled to 8 qualified immunity. (ECF No. 75.) Franklin opposed the motion, (ECF No. 107), and 9 Defendants replied. (ECF No. 119.) 10 III. LEGAL STANDARDS 11 “The court shall grant summary judgment if the movant shows that there is no 12 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 13 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 14 substantive law applicable to the claim determines which facts are material. Coles v. 15 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 16 248 (1986)). Only disputes over facts that address the main legal question of the suit can 17 preclude summary judgment, and factual disputes that are irrelevant are not material. 18 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where 19 a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 20 The parties subject to a motion for summary judgment must: (1) cite facts from the 21 record, including but not limited to depositions, documents, and declarations, and then 22 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 23 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 24 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 25 authenticated, and if only personal knowledge authenticates a document (i.e., even a 26 review of the contents of the document would not prove that it is authentic), an affidavit 27 attesting to its authenticity must be attached to the submitted document. Las Vegas 1 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 2 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 3 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 4 The moving party bears the initial burden of demonstrating an absence of a 5 genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the 6 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 7 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 8 at 984. However, if the moving party does not bear the burden of proof at trial, the moving 9 party may meet their initial burden by demonstrating either: (1) there is an absence of 10 evidence to support an essential element of the nonmoving party’s claim or claims; or (2) 11 submitting admissible evidence that establishes the record forecloses the possibility of a 12 reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco 13 Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz 14 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and any 15 inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. 16 Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its 17 burden for summary judgment, the nonmoving party is not required to provide evidentiary 18 materials to oppose the motion, and the court will deny summary judgment. Celotex, 477 19 U.S. at 322-23. 20 Where the moving party has met its burden, however, the burden shifts to the 21 nonmoving party to establish that a genuine issue of material fact actually exists. 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 23 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 24 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 25 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 26 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 27 affidavits, and/or admissible discovery material in support of its contention that such a 1 “not a light one,” and requires the nonmoving party to “show more than the mere existence 2 of a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 3 (9th Cir. 2010)). The non-moving party “must come forth with evidence from which a jury 4 could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf Shipping 5 Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere assertions 6 and “metaphysical doubt as to the material facts” will not defeat a properly supported and 7 meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 8 475 U.S. 574, 586–87 (1986). 9 When a pro se litigant opposes summary judgment, his or her contentions in 10 motions and pleadings may be considered as evidence to meet the non-party’s burden to 11 the extent: (1) contents of the document are based on personal knowledge, (2) they set 12 forth facts that would be admissible into evidence, and (3) the litigant attested under 13 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 14 (9th Cir. 2004). 15 Upon the parties meeting their respective burdens for the motion for summary 16 judgment, the court determines whether reasonable minds could differ when interpreting 17 the record; the court does not weigh the evidence or determine its truth. Velazquez v. City 18 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 19 the record not cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). 20 Nevertheless, the court will view the cited records before it and will not mine the record 21 for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party 22 does not make nor provide support for a possible objection, the court will likewise not 23 consider it). 24 IV. DISCUSSION 25 A. Statute of Limitations 26 Defendants first argue for summary judgment on the basis that Franklin’s claims 27 are barred by the two-year statute of limitations applicable to claims brought under 42 1 Since 42 U.S.C. § 1983 contains no statute of limitations, federal courts apply the 2 forum state’s statute of limitations for personal injury claims to determine whether a 3 complaint is timely filed. Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000). 4 Therefore, in Nevada, the statute of limitations for section 1983 actions is two years. See 5 Nev. Rev. Stat. § 11.190(4)(e); see Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th 6 Cir. 2014). Under the applicable statute of limitations, Franklin had two years from the 7 time of the alleged injury to commence the instance suit. Id. An action is deemed to be 8 commenced when the complaint is filed. Id. However, the “statute of limitations must be 9 tolled while a prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 10 422 F.3d 926, 943 (9th Cir. 2005); see also Soto v. Sweetman, 882 F.3d 865, 872 (9th 11 Cir. 2018) (“This circuit has, with other circuits, adopted a mandatory tolling provision for 12 claims subject to the Prison Litigation Reform Act.”). 13 A § 1983 action is commenced in federal district court for purposes of the statute 14 of limitations when the complaint is filed pursuant to the Federal Rules of Civil Procedure. 15 Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002). The Ninth Circuit has concluded 16 that a plaintiff has “brought” an action for purposes of § 1915(g) when he “submits a 17 complaint and request to proceed in forma pauperis to the court.” O’Neal v. Price, 531 18 F.3d 1146, 1152 (9th Cir. 2008). 19 Defendants argue Franklin knew or had reason to know of his injury on January 20 21, 2017, the date of the use of force incident. See Kimes v. Stone, 84 F.3d 1121, 1128 21 (9th Cir. 1996). Because Franklin filed grievances related to the incident, the statute of 22 limitations was tolled and began running on October 26, 2017, which is the final response 23 date of grievance 2006-30-41910. (ECF No. 75 at 11.) Thus, Franklin had until October 24 26, 2019 to bring his action. 25 Confusingly, Defendants argue that the Court should use the date Franklin filed 26 his amended complaint—April 28, 2020—as the date he “brought” this action. (ECF No. 27 18; ECF No. 75 at 11.) This argument is directly contrary to established case law in this 1 when the complaint is tendered to the district clerk, not when it is subsequently filed 2 pursuant to the grant of a motion to proceed in forma pauperis. Vaden v. Summerhill, 449 3 F.3d 1047, 1150–51 (9th Cir. 2006). Franklin submitted his original complaint to the Court 4 on October 23, 2018. (ECF No. 1-1). Thus, Franklin brought his action well before the 5 applicable statute of limitations. See O’Neal, 531 F.3d at 1152. Because Franklin 6 tendered his original complaint to the Court on October 23, 2018, he filed his complaint 7 well within the applicable statute of limitations period and Defendants are not entitled to 8 summary judgment on this basis. 9 B. Failure to Exhaust Administrative Remedies as to Medical Claim 10 Next, Defendants argue summary should be granted because Franklin failed to 11 exhaust his administrative remedies as to his deliberate indifference claim against 12 Defendant Martin. (ECF No. 75 at 12-14.) 13 Under the PLRA, “[n]o action shall be brought with respect to prison conditions 14 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, 15 prison, or other correctional facility until such administrative remedies as are available are 16 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 17 516, 524 (2002). The requirement’s underlying premise is to “reduce the quantity and 18 improve the quality of prisoner suits” by affording prison officials the “time and opportunity 19 to address complaints internally before allowing the initiation of a federal case. In some 20 instances, corrective action taken in response to an inmate’s grievance might improve 21 prison administration and satisfy the inmate, thereby obviating the need for litigation.” Id. 22 at 524–25. 23 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 24 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison 25 holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 26 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands 27 compliance with an agency’s deadlines and other critical procedural rules because no 1 the course of its proceedings.” Woodford, 548 U.S. at 90–91. 2 In the Ninth Circuit, a motion for summary judgment will typically be the appropriate 3 vehicle to determine whether an inmate has properly exhausted his or her administrative 4 remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence 5 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant 6 is entitled to summary judgment under Rule 56. If material facts are disputed, summary 7 judgment should be denied, and the district judge rather than a jury should determine the 8 facts.” Id. at 1166. The question of exhaustion “should be decided, if feasible, before 9 reaching the merits of a prisoner’s claim.” Id. at 1170. 10 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 11 (2007). The defendant bears the burden of proving that an available administrative 12 remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172. If the defendant makes 13 such a showing, the burden shifts to the inmate to “show there is something in his 14 particular case that made the existing and generally available administrative remedies 15 effectively unavailable to him by ‘showing that the local remedies were ineffective, 16 unobtainable, unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 17 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 18 1. Analysis 19 Defendants argue Franklin did not grieve the issues surrounding his medical 20 treatment that arose from the January 21, 2017 use of force incident. (ECF No. 75 at 14.) 21 Defendants attach Franklin’s grievance history report and claim this demonstrates that 22 the only issue he fully exhausted is his excessive force claim. (ECF No. 76 at 77-114.) 23 On January 31, 2017, Franklin filed grievance 2006-30-41910, regarding disciplinary 24 charges related to the use of force incident on January 31, 2017. (ECF No. 76 at 59-76.) 25 While this grievance discusses the use of force incident and injuries Franklin sustained, 26 it does not discuss lack of medical care following the incident. (Id.) Franklin points to an 27 informal grievance that discusses medical treatment at ECF No. 107 at 106-108. 1 After an exhaustive review of the record, the Court could not locate any other grievances 2 that discuss lack of medical treatment related to the use of force incident. 3 It is well established that PLRA requires “proper exhaustion” of an inmate’s claims. 4 See Woodford, 548 U.S. at 90. Proper exhaustion means an inmate must “use all steps 5 the prison holds out, enabling the prison to reach the merits of the issue.” Griffin, 557 F.3d 6 at 1119 (citing Woodford, 548 U.S. at 90). Additionally, “proper exhaustion demands 7 compliance with an agency’s deadlines and other critical procedural rules.” Woodford, 8 548 U.S. at 90. Here, it appears Franklin failed to follow all required steps to allow prison 9 officials to reach the merits of the issue as he failed to file a grievance related to his 10 medical treatment. While Franklin notes that he filed several medical kites related to 11 medical treatment, (ECF No. 107 at 23-25), this does not satisfy the grievance procedure 12 laid out by NDOC. See, e.g., Depasquale v. Nevada Dept. of Corrections, No. 3:07-cv- 13 00107-LRH-VPC, 2009 WL 2957967 at *4 (D. Nev. Sept. 10, 2009) (finding that plaintiff 14 cannot exhaust his administrative remedies through means outside of the grievance 15 process such as through medical kites and letters to doctors.) Additionally, aside from his 16 self-serving statements that he filed grievances, there is no evidence that Franklin actually 17 filed any grievance explicitly related to lack of medical treatment that he received by 18 NDOC employees. Accordingly, the Court finds that Franklin failed to exhaust his 19 administrative remedies pursuant to NDOC Administrative Regulation 740 prior to 20 initiating this action as to Franklin’s deliberate indifference claim. 21 The burden now shifts to Franklin “to come forward with evidence showing that 22 there is something in his particular case that made the existing and generally available 23 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 (citing 24 Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)). Franklin provides no 25 evidence to show that administrative remedies were unavailable to him. Franklin only 26 asserts that many of his grievances were “being tossed” but does not provide any 27 evidence of his assertion. (ECF No. 107 at 38.) Franklin's self-serving statement provides 1 documentary evidence Defendants have presented. Because Franklin presents no 2 evidence that administrative remedies were effectively “unavailable,” the Court concludes 3 that Franklin failed to exhaust available administrative remedies prior to filing this action 4 as to his Eighth Amendment deliberate indifference to serious medical needs claim, and 5 therefore the Court grants Defendants’ motion as to this claim only.4 6 C. Excessive Force 7 The Court will now address the substantive arguments related to Franklin’s 8 remaining claim involving the use of excessive force. The Eighth Amendment’s 9 proscription on cruel and unusual punishment forbids prison officials from inflicting “the 10 unnecessary and wanton infliction of pain . . ..” Whitley v. Albers, 475 U.S. 312, 319 11 (1986). Encompassed within the Eighth Amendment is a bar on the use of excessive force 12 against prisoners. See Hudson v. McMillian, 503 U.S. 1, 7-10 (1992). Courts in the Ninth 13 Circuit apply a five-part balancing test to excessive force claims: (1) the extent of the 14 inmate’s injuries; (2) the need for application of force; (3) the relationship between the 15 need and amount of force; (4) the threat reasonably perceived by prison officials; and (5) 16 any efforts that officials utilized to “‘temper the severity of a forceful response.’” Id. at 7 17 (quoting Whitley, 475 U.S. at 321); see also Wilkins v. Gaddy, 559 U.S. 34, 36-38 (2010); 18 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 19 The inmate must demonstrate that officials acted maliciously and sadistically to 20 prevail. “[W]henever prison officials stand accused of using excessive physical force in 21 violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was 22 applied in a good-faith effort to maintain or restore discipline, or maliciously and 23 sadistically to cause harm.” Hudson, 503 U.S. at 6-7. As the Ninth Circuit has explained, 24 [t]he “malicious and sadistic” standard arose out of “the need to maintain or restore discipline” inside the prison. When a prison disturbance occurs, 25 prison officials must make “decisions ‘in haste, under pressure, and 26 frequently without the luxury of a second chance.’” In these situations,
27 4 Because the Court finds that Franklin failed to exhaust his administrative remedies as to his deliberate indifference to serious medical needs claim, it need not discuss the 1 prison officials are “accorded wide-ranging deference” and therefore, prisoners alleging excessive force must show that the force was applied 2 “maliciously and sadistically to cause harm.” 3 Wood v. Beauclair, 692 F.3d 1041, 1049-50 (9th Cir. 2012) (quoting Hudson, 503 U.S. at 4 6 and Whitley, 475 U.S. at 320). Thus, the Court must be careful when reviewing the 5 factors to verify indicia of “such wantonness with respect to the unjustified infliction of 6 harm as [is] tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 9. 7 Moreover, there is no need for a showing of serious injury as a result of the force, but the 8 lack of such injury is relevant to the inquiry. See id. at 7-9; Martinez, 323 F.3d at 1184; 9 Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000). 10 Excessive force cases “nearly always requires a jury to sift through disputed factual 11 contentions, and to draw inferences therefrom,” and for this reason, the Ninth Circuit has 12 “held on many occasions that summary judgment or judgment as a matter of law in 13 excessive force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 14 (9th Cir. 2002); see also Lolli v. Cnty. of Orange, 351 F.3d 410, 415–16 (9th Cir. 2003); 15 Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n. 10 (9th Cir. 1997) (citing cases). 16 In the motion for summary judgment, Defendants contend the force was 17 reasonable and used in a good faith effort to restore discipline. (ECF No. 75 at 5-9.) Based 18 on the evidence before the Court, and in viewing all facts and drawing all inferences in 19 the light most favorable to Franklin, the Court finds that summary judgment must be 20 denied with respect to the excessive force claim for several reasons. 21 First, Defendants fail to meet their initial burden in moving for summary judgment 22 to demonstrate that a reasonable juror could not find for Franklin. Celotex, 477 U.S. at 23 323. Defendants are thus unable to overcome the initial step in the summary judgment 24 burden-shifting framework. See In re Oracle Corp., 627 F.3d at 387. 25 Franklin’s verified complaint alone overcomes Defendants’ claim that “no evidence 26 exists” to establish excessive force in this case. Pursuant to Ninth Circuit law, “[a] verified 27 complaint may be treated as an affidavit to the extent that the complaint is based on 1 personal knowledge and sets forth facts admissible in evidence . . . .” thus satisfying the 2 Celotex affidavit requirement. McElyea, 833 F.2d at 197-98 (quoting Lew v. Kona 3 Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985). 4 To the extent Defendants argues the Court should discount the facts stated in the 5 complaint, this argument also fails. The Court may not engage in ‘[c]redibility 6 determinations’ or ‘the weighing of evidence’” at the summary judgment stage, “as those 7 are functions reserved for the jury.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) 8 (quoting Anderson, 477 U.S. at 255). 9 Therefore, Defendants have failed to meet their initial burden on summary 10 judgment establishing that there was no evidence in the record that the events occurred 11 based on the complaint. On this basis alone, Defendants’ motion should be denied as to 12 the excessive force claim. 13 However, even if the Court were to assume Defendants met their initial burden on 14 summary judgment, Defendants’ motion must still be denied. Viewing the evidence in the 15 light most favorable to Franklin, the Court cannot say as a matter of law that the force 16 used was not excessive as it appears the evidence is disputed. According to Franklin’s 17 allegations, Mesa maliciously and sadistically pulled Franklin out of his cell for the 18 purpose of causing injury to him. Based on these allegations, Mesa’s use of force did not 19 appear to be used to maintain or restore discipline. (ECF No. 18.) By contrast, Defendants 20 allege that the use of force was reasonable and necessary based on the circumstances 21 surrounding the incident. A jury will have to shift through the facts presented to determine 22 whether the amount of force used against Franklin was excessive or whether it was 23 reasonable and necessary in light of the facts and circumstances. 24 It is not the Court's role to weigh conflicting evidence or make credibility 25 determinations, but only to determine whether there is a genuine issue of material fact for 26 trial. Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). Further, 27 the Ninth Circuit has found that the reasonableness of force used is ordinarily a question 1 determinations. See Liston, 120 F.3d at 976 n. 10. 2 The Court finds that Franklin has set forth evidence sufficient to raise a genuine 3 issue of material fact for trial as to whether Defendants’ use of force was “maliciously and 4 sadistically” applied rather than as part of a “good faith effort to maintain or restore 5 discipline.” Hudson, 503 U.S. at 7. Accordingly, the Court recommends that Defendants’ 6 motion for summary judgment, (ECF No. 75), be denied as to Franklin’s Eighth 7 Amendment excessive force claim. 8 D. Qualified Immunity 9 The Eleventh Amendment bars damages claims and other actions for retroactive 10 relief against state officials sued in their official capacities. Brown, 751 F.3d at 988–89 11 (citing Pennhurst, 465 U.S. at 100). State officials who are sued individually may also be 12 protected from civil liability for money damages by the qualified immunity doctrine. More 13 than a simple defense to liability, the doctrine is “an entitlement not to stand trial or face 14 other burdens of litigation . . .” such as discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 15 (1985). 16 When conducting a qualified immunity analysis, the Court asks “(1) whether the 17 official violated a constitutional right and (2) whether the constitutional right was clearly 18 established.” C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014) (citing Pearson 19 v. Callahan, 555 U.S. 223, 232, 236 (2009)). A right is clearly established if it would be 20 clear to a reasonable official in the defendant’s position that his conduct in the given 21 situation was constitutionally infirm. Anderson v. Creighton, 483 U.S. 635, 639–40, 22 (1987); Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012). The Court may 23 analyze the elements of the test in whatever order is appropriate under the circumstances 24 of the case. Pearson, 555 U.S. at 240–42. 25 A right is clearly established when the “contours of the right [are] sufficiently clear 26 that a reasonable official would understand that what he is doing violates that 27 right.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (quoting Anderson, 483 1 must place the lawfulness of the particular [action] beyond debate,” City of Escondido v. 2 Emmons, 139 S. Ct. 500, 504 (alteration in original) (quoting District of Columbia v. 3 Wesby, 138 S. Ct. 577, 581 (2018) (internal quotation marks omitted)), and must “ 4 ‘squarely govern[ ]’ the specific facts at issue,” Kisela v. Hughes, 138 S. Ct. 1148, 1153 5 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 15 (2015)). See Jessop v. City of Fresno, 6 936 F.3d 937, 940–41 (9th Cir. 2019) (“The contours of the right must be sufficiently clear 7 that a reasonable official would understand that what he is doing violates that right.”) 8 (quoting Anderson, 483 U.S. at 640). 9 The plaintiff “bears the burden of showing that the rights allegedly violated were 10 clearly established.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 11 2017) (internal quotation marks and citation omitted). However, because resolving 12 whether the asserted federal right was clearly established presents a pure question of 13 law, we draw on our “full knowledge” of relevant precedent rather than restricting our 14 review to cases identified by the plaintiff. See Elder, 510 U.S. at 516 (holding appellate 15 court must review qualified immunity judgment de novo and resolve whether federal right 16 was clearly established in light of its “full knowledge of its own [and other relevant] 17 precedents”) (alteration in original) (citation omitted). Ultimately, “the prior precedent must 18 be ‘controlling’—from the Ninth Circuit or Supreme Court—or otherwise be embraced by 19 a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp v. County of Orange, 871 20 F.3d 901, 911 (9th Cir. 2017) (citing Wilson v. Lane, 526 U.S. 603, 617 (1999)); see also 21 Wesby, 138 S. Ct. at 589–90 (“The rule must be settled law, which means it is dictated 22 by controlling authority or a robust consensus of cases of persuasive authority. It is not 23 enough that the rule is suggested by then-existing precedent.”) (internal quotation marks 24 and citations omitted); Carroll v. Carman, 574 U.S. 13, 17, (2014) (per curiam) (assuming 25 without deciding that controlling circuit precedent could constitute clearly established 26 federal law). 27 Defendants contend Mesa is entitled to qualified immunity because the law was 1 Defendants assert that a reasonable officer in Mesa’s position would have believed using 2 force to remove an inmate from an unknown object under a prison bed and to regain 3 control of an inmate fighting to free themselves from restraints was lawful. (Id. at 22.) 4 However, these arguments assume that Mesa’s version of events occurred. Because 5 genuine issues of material fact exist as to whether Mesa violated Franklin’s constitutional 6 rights, qualified immunity is not appropriate at this juncture. 7 Based on Franklin’s version of events, it was clearly established at the time of the 8 incident that a prison official violates the constitution when force is used maliciously or 9 sadistically to cause harm and not in a good-faith effort to maintain or restore 10 discipline. See Hudson, 503 U.S. at 6-7. Taking the facts in the light most favorable to 11 Franklin, a fact finder could determine that Defendants violated Franklin’s clearly 12 established rights. For these reasons, Defendants are not entitled to qualified immunity. 13 V. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several 15 cases not discussed above. The Court has reviewed these arguments and cases and 16 determines that they do not warrant discussion as they do not affect the outcome of the 17 issues before the Court. 18 For the reasons stated above, IT IS THEREFORE ORDERED that Defendants’ 19 motion for summary judgment, (ECF No. 75), is GRANTED in part, and DENIED in part, 20 as follows: 21 • GRANTED, as to the Eighth Amendment deliberate indifference to serious 22 medical needs claim against Defendant Martin, and 23 • DENIED, as to the Eighth Amendment excessive force claim against 24 Defendant Mesa. 25 IT IS FURTHER ORDERED that Defendant Martin is DISMISSED from this action. 26 IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT 27 accordingly. 1 IT IS FURTHER ORDERED that Franklin’s motion for reconsideration, (ECF No. 2| 117)is DENIED, AS MOOT. 3 DATED: January 9, 2023 |
5 UNITED sare MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on