1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 HENRY MOSES MITCHELL, Case No. 23-cv-00461-WHO (PR) aka HENRY C. HAYES, 12 Plaintiff, ORDER GRANTING 13 DEFENDANT’S MOTION FOR v. SUMMARY JUDGMENT 14 K. YOCHUM, Dkt. No. 20 15 Defendant.
17 INTRODUCTION 18 Plaintiff Henry Moses Mitchell (aka Henry C. Hayes) alleges that defendant K. 19 Yochum, a prison guard, used excessive force against him when she closed his cell’s food 20 port door. Yochum has filed a motion for summary judgment. Mitchell’s constitutional 21 rights were not violated: the undisputed material facts show that the port door never made 22 physical contact with Mitchell and there are no facts to support a claim of constructive 23 force in which threats and intimidation were used to gain control over Mitchell or prevent 24 his resistance. And even if a constitutional right had been violated, Yochum is entitled to 25 qualified immunity because it was not so clearly established that she should have known 26 that she was violating it when she closed the food port door. Accordingly, her motion for 27 summary judgment is GRANTED. 1 BACKGROUND 2 The material factual allegations are undisputed. Mitchell, a California state 3 prisoner, alleges that on December 9, 2022, Yochum, a correctional officer at Pelican Bay 4 State Prison, “slammed the solid steel tray port door directly in the left ear of Plaintiff.” 5 (Compl., Dkt. No. 1 at 3.) In my initial review of Mitchell’s complaint, I read his 6 allegations as saying that the port door actually came into physical contact with him. I was 7 mistaken. There was no physical contact between the port door and Mitchell, as he admits 8 in his deposition testimony: 9 Q: So — and then she slammed it. So, was your ear — let me rephrase 10 that. Was any contact made with the metal port and your ear? 11 A: No. Just the percussion from the door being slammed. Just the 12 percussion.
13 Q: Okay, so at no point did this port actually, like, hit your head or your 14 ear?
15 A: There’s no possible way because, again, there’s five and half inches 16 that goes — it’s recessed inside the wall five and a half inches.
17 Q: Okay. So, I just wanted to get clarification on that. So, now I understand that you — and correct me if I’m wrong. But you were leaning 18 in near the port so that you could hear Officer Yochum, correct? 19 A: Yes. 20
21 Q: Okay. And — but when she slammed it, it didn’t actually make contact with your head or ear, correct? 22 A: No. 23
24 Q: But the noise is what reverberated loudly; is that correct?
25 A: That is correct. 26 Q: Okay. And so, your claim in this lawsuit is that she, Officer Yochum, 27 slammed the cuff port so loudly that it caused a very loud noise? A: No, it didn’t cause a very loud noise. It caused an increased piercing 1 into my limited hearing which caused me headaches — 2 (MSJ, Deposition Transcript, Dkt. No. 20-2 at 4-5.) 3 STANDARD OF REVIEW 4 Summary judgment is proper where the pleadings, discovery and affidavits 5 demonstrate that there is “no genuine dispute as to any material fact and [that] the movant 6 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those 7 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 8 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 9 reasonable jury to return a verdict for the nonmoving party. Id. 10 The party moving for summary judgment bears the initial burden of identifying 11 those portions of the pleadings, discovery and affidavits which demonstrate the absence of 12 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 13 Where the moving party will have the burden of proof on an issue at trial, it must 14 affirmatively demonstrate that no reasonable trier of fact could find other than for the 15 moving party. On an issue for which the opposing party by contrast will have the burden 16 of proof at trial, as is the case here, the moving party need only point out “that there is an 17 absence of evidence to support the nonmoving party’s case.” Id. at 325. 18 Once the moving party meets its initial burden, the nonmoving party must go 19 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts 20 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is 21 concerned only with disputes over material facts and “[f]actual disputes that are irrelevant 22 or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the 23 court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 24 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with 25 reasonable particularity, the evidence that precludes summary judgment. Id. If the 26 nonmoving party fails to make this showing, “the moving party is entitled to a judgment as 27 a matter of law.” Celotex, 477 U.S. at 323 (internal quotations omitted). 1 DISCUSSION 2 When prison officials stand accused of using excessive force in violation of the 3 Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith 4 effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 5 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 6 (1986). In determining whether the use of force was for the purpose of maintaining or 7 restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may 8 evaluate the need for application of force, the relationship between that need and the 9 amount of force used, the extent of any injury inflicted, the threat reasonably perceived by 10 the responsible officials, and any efforts made to temper the severity of a forceful 11 response. Hudson, 503 U.S. at 7. “The Eighth Amendment’s prohibition of cruel and 12 unusual punishment necessarily excludes from constitutional recognition de minimis uses 13 of physical force, provided that the use of force is not of a sort repugnant to the conscience 14 of mankind. Id. at 9-10. An inmate who complains of a push or shove that causes no 15 discernable injury almost certainly fails to state a valid excessive force claim. Id. at 9. 16 A district court has considered the exact issue presented in this case: it held that 17 “[s]lamming a food port hatch loudly does not constitute excessive force” because “it is 18 not an application of power, violence, or pressure against plaintiff, nor could it put plaintiff 19 in reasonable apprehension for his safety the way a threat would.” Kamilchu v. County of 20 Sacramento, No. 2:21-cv-02245 DB P, 2023 WL 4187871, at *3 (E.D. Cal. June 26, 21 2023). The court reasoned: Black’s Law Dictionary defines ‘force’ as ‘[p]ower, violence, or pressure 22 directed against a person or thing.’ Force, Black’s Law Dictionary (11th ed. 23 2019). ‘Threats and intimidation to gain control or prevent resistance’ can also constitute force. Constructive force, Black’s Law Dictionary (11th ed. 24 2019); see, e.g., Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 HENRY MOSES MITCHELL, Case No. 23-cv-00461-WHO (PR) aka HENRY C. HAYES, 12 Plaintiff, ORDER GRANTING 13 DEFENDANT’S MOTION FOR v. SUMMARY JUDGMENT 14 K. YOCHUM, Dkt. No. 20 15 Defendant.
17 INTRODUCTION 18 Plaintiff Henry Moses Mitchell (aka Henry C. Hayes) alleges that defendant K. 19 Yochum, a prison guard, used excessive force against him when she closed his cell’s food 20 port door. Yochum has filed a motion for summary judgment. Mitchell’s constitutional 21 rights were not violated: the undisputed material facts show that the port door never made 22 physical contact with Mitchell and there are no facts to support a claim of constructive 23 force in which threats and intimidation were used to gain control over Mitchell or prevent 24 his resistance. And even if a constitutional right had been violated, Yochum is entitled to 25 qualified immunity because it was not so clearly established that she should have known 26 that she was violating it when she closed the food port door. Accordingly, her motion for 27 summary judgment is GRANTED. 1 BACKGROUND 2 The material factual allegations are undisputed. Mitchell, a California state 3 prisoner, alleges that on December 9, 2022, Yochum, a correctional officer at Pelican Bay 4 State Prison, “slammed the solid steel tray port door directly in the left ear of Plaintiff.” 5 (Compl., Dkt. No. 1 at 3.) In my initial review of Mitchell’s complaint, I read his 6 allegations as saying that the port door actually came into physical contact with him. I was 7 mistaken. There was no physical contact between the port door and Mitchell, as he admits 8 in his deposition testimony: 9 Q: So — and then she slammed it. So, was your ear — let me rephrase 10 that. Was any contact made with the metal port and your ear? 11 A: No. Just the percussion from the door being slammed. Just the 12 percussion.
13 Q: Okay, so at no point did this port actually, like, hit your head or your 14 ear?
15 A: There’s no possible way because, again, there’s five and half inches 16 that goes — it’s recessed inside the wall five and a half inches.
17 Q: Okay. So, I just wanted to get clarification on that. So, now I understand that you — and correct me if I’m wrong. But you were leaning 18 in near the port so that you could hear Officer Yochum, correct? 19 A: Yes. 20
21 Q: Okay. And — but when she slammed it, it didn’t actually make contact with your head or ear, correct? 22 A: No. 23
24 Q: But the noise is what reverberated loudly; is that correct?
25 A: That is correct. 26 Q: Okay. And so, your claim in this lawsuit is that she, Officer Yochum, 27 slammed the cuff port so loudly that it caused a very loud noise? A: No, it didn’t cause a very loud noise. It caused an increased piercing 1 into my limited hearing which caused me headaches — 2 (MSJ, Deposition Transcript, Dkt. No. 20-2 at 4-5.) 3 STANDARD OF REVIEW 4 Summary judgment is proper where the pleadings, discovery and affidavits 5 demonstrate that there is “no genuine dispute as to any material fact and [that] the movant 6 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those 7 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 8 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 9 reasonable jury to return a verdict for the nonmoving party. Id. 10 The party moving for summary judgment bears the initial burden of identifying 11 those portions of the pleadings, discovery and affidavits which demonstrate the absence of 12 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 13 Where the moving party will have the burden of proof on an issue at trial, it must 14 affirmatively demonstrate that no reasonable trier of fact could find other than for the 15 moving party. On an issue for which the opposing party by contrast will have the burden 16 of proof at trial, as is the case here, the moving party need only point out “that there is an 17 absence of evidence to support the nonmoving party’s case.” Id. at 325. 18 Once the moving party meets its initial burden, the nonmoving party must go 19 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts 20 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is 21 concerned only with disputes over material facts and “[f]actual disputes that are irrelevant 22 or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the 23 court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 24 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with 25 reasonable particularity, the evidence that precludes summary judgment. Id. If the 26 nonmoving party fails to make this showing, “the moving party is entitled to a judgment as 27 a matter of law.” Celotex, 477 U.S. at 323 (internal quotations omitted). 1 DISCUSSION 2 When prison officials stand accused of using excessive force in violation of the 3 Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith 4 effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 5 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 6 (1986). In determining whether the use of force was for the purpose of maintaining or 7 restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may 8 evaluate the need for application of force, the relationship between that need and the 9 amount of force used, the extent of any injury inflicted, the threat reasonably perceived by 10 the responsible officials, and any efforts made to temper the severity of a forceful 11 response. Hudson, 503 U.S. at 7. “The Eighth Amendment’s prohibition of cruel and 12 unusual punishment necessarily excludes from constitutional recognition de minimis uses 13 of physical force, provided that the use of force is not of a sort repugnant to the conscience 14 of mankind. Id. at 9-10. An inmate who complains of a push or shove that causes no 15 discernable injury almost certainly fails to state a valid excessive force claim. Id. at 9. 16 A district court has considered the exact issue presented in this case: it held that 17 “[s]lamming a food port hatch loudly does not constitute excessive force” because “it is 18 not an application of power, violence, or pressure against plaintiff, nor could it put plaintiff 19 in reasonable apprehension for his safety the way a threat would.” Kamilchu v. County of 20 Sacramento, No. 2:21-cv-02245 DB P, 2023 WL 4187871, at *3 (E.D. Cal. June 26, 21 2023). The court reasoned: Black’s Law Dictionary defines ‘force’ as ‘[p]ower, violence, or pressure 22 directed against a person or thing.’ Force, Black’s Law Dictionary (11th ed. 23 2019). ‘Threats and intimidation to gain control or prevent resistance’ can also constitute force. Constructive force, Black’s Law Dictionary (11th ed. 24 2019); see, e.g., Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (plaintiff successfully pleaded an excessive force claim, where officer 25 aimed a firearm at plaintiff’s head at close range while plaintiff was 26 unarmed). This court has defined excessive force as ‘that degree of force which is in excess of what a reasonable and prudent officer would apply, 27 considering the need presented, the extent of injury inflicted, and any Adams v. Speers, No. CV F 02-5741 LJO DLB, 2009 WL 1106955, at *29 1 (E.D. Cal. Feb. 5, 2009). 2 Id. The court concluded that even if the allegations were broadly construed as the 3 application of physical force, it would constitute “a de minimis use of physical force, one 4 that is not ‘repugnant to the conscience of mankind.’ ” Id. 5 The reasoning in Kamilchu is persuasive. And even under a broad interpretation of 6 the undisputed material facts, the allegations do not support a constructive force claim in 7 which threats and intimidation were used to gain control or prevent resistance. Robinson, 8 278 F.3d at 1014 (plaintiff successfully pleaded an excessive force claim, where officer 9 aimed a firearm at plaintiff’s head at close range while plaintiff was unarmed). 10 Mitchell’s contentions to the contrary do not show a genuine dispute of material 11 fact. He alleges that the percussive force of the door being closed was “an application of 12 power, violence, or pressure” sufficient to constitute excessive force under the Eighth 13 Amendment and that he suffers from “hearing and mobility limitations.” (Opp., Dkt. No. 14 21 at 3.) But actual physical force must be applied to a person, or constructive force 15 applied in the form of threats and intimidation to gain control over Mitchell or prevent his 16 resistance (such as aiming a firearm at a person at close range while the person was 17 unarmed) in order to constitute excessive force. Neither occurred here. 18 Mitchell’s cases are not on point. (Opp., Dkt. No. 21 at 2.) Hope v. Pelzer is not an 19 excessive force case; it is an examination of whether plaintiff was subjected to cruel and 20 unusual punishment when prison guards twice handcuffed him to a hitching post to 21 sanction him for disruptive conduct. 536 U.S. 730, 733 (2002). And Cornwell v. 22 Dahlberg addressed a very different issue, discussing in part whether being forced to lie on 23 muddy wet ground could give rise to an excessive force claim under the Fourth or Eighth 24 Amendment. 963 F.2d 912, 916 (6th Cir. 1992). That out of circuit case is not helpful in 25 considering the issues here. 26 Yochum also contends that she is entitled to qualified immunity. (MSJ, Dkt. No. 20 27 at 7.) I agree. The defense of qualified immunity protects “government officials . . . from 1 liability for civil damages insofar as their conduct does not violate clearly established 2 statutory or constitutional rights of which a reasonable person would have known.” 3 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 4 Under Saucier v. Katz, 533 U.S. 194 (2001), the court must undertake a two-step 5 analysis when a defendant asserts qualified immunity in a motion for summary judgment. 6 The court first faces “this threshold question: Taken in the light most favorable to the 7 party asserting the injury, do the facts alleged show the officer’s conduct violated a 8 constitutional right?” 533 U.S. at 201. If the court determines that the conduct did not 9 violate a constitutional right, the inquiry is over and the officer is entitled to qualified 10 immunity. If the court determines that the conduct did violate a constitutional right, it then 11 moves to the second step and asks “whether the right was clearly established” such that “it 12 would be clear to a reasonable officer that his conduct was unlawful in the situation he 13 confronted.” Id. at 201-02. Even if the violated right was clearly established, qualified 14 immunity shields an officer from suit when he makes a decision that, even if 15 constitutionally deficient, reasonably misapprehends the law governing the circumstances 16 he confronted. Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205- 17 06. If “the officer’s mistake as to what the law requires is reasonable . . . the officer is 18 entitled to the immunity defense.” Id. at 205. Although the Saucier sequence is often 19 appropriate and beneficial, it is not mandatory. A court may exercise its discretion in 20 deciding which prong to address first, in light of the particular circumstances of each case. 21 See Pearson v. Callahan, 555 U.S. 223, 235-36 (2009). 22 Yochum is entitled to qualified immunity because the undisputed alleged facts do 23 not show that she violated a constitutional right. As discussed above, there are no factual 24 allegations that there was physical contact or constructive force. There was no excessive 25 force. Because it is clear that no constitutional right was violated, there is no need to 26 proceed to the second Saucier step of inquiry. But if some constitutional right had been 27 violated, it was certainly not so clearly established that when Yochum slammed the cell 1 CONCLUSION 2 Yochum’s motion for summary judgment is GRANTED. (Dkt. No. 20.) The Clerk 3 || shall terminate all pending motions, enter judgment in favor of defendant Yochum, and 4 || close the file. 5 IT ISSO ORDERED. 6 || Dated: March 6, 2025 . 7 M H. ORRIC 8 United States District Judge 9 10 11 qa 12
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