Montez II v. Oliver

• Court: District Court, E.D. California
• Decided: June 25, 2020
• Docket: 1:18-cv-01510
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6

7 CASE NO. 1:18-cv-01510-AWI-BAM 8 JAMES ROBERT MONTEZ, II,

ORDER ON: 9 Plaintiff,

1. DEFENDANTS’ MOTION FOR 10 vs. SUMMARY JUDGMENT OR IN THE

ALTERNATIVE SUMMARY 11 FRESNO COUNTY CORRECTIONAL ADJUCIATION; AND OFFICER OLIVER; UNKNOWN LAW

12 ENFORCEMENT OFFICERS; COUNTY 2. DEFENDANTS’ REQUEST TO SEAL OF FRESNO, CALIFORNIA, DOCUMENTS 13 Defendant.

15 (Doc. Nos. 24 and 25)

17 18 19 20 21 22 Plaintiff James Robert Montez II (“Montez”) sustained injuries to his jaw during a riot in 23 Fresno County Jail in 2017 as a result of actions taken by Defendant Correctional Officer Oliver 24 (“Oliver”). Montez brought this case against Oliver, the County of Fresno and “Unknown Law 25 Enforcement Officers” (collectively, “Defendants”) alleging a federal claim for excessive force 26 under 42 U.S.C. § 1983 (“Section 1983”) and state law claims for battery and negligence. For the 27 reasons set forth below, the Court will grant summary judgment in Defendants’ favor on the 1 FACTUAL BACKGROUND1 2 As of October 27, 2017, Montez was a sentenced inmate at Fresno County Jail. JSUMF 3 No. 1.2 Montez was housed on the third floor of the North Jail in E-Pod. Id. No. 2. E-Pod 4 contained approximately 72 inmates. PSDF No. 1. 5 At approximately 11:00 p.m. on October 27, 2017, a large group of inmates gathered in the 6 lower tier of E-Pod on the third floor of the North Jail, after they were supposed to be in their 7 bunks for inmate count. JSUMF Nos. 3-4. Oliver became aware of this gathering while conducting 8 his rounds and was informed that floor officers were letting inmates talk out an issue to de-escalate 9 the situation. Id. Nos. 5- 6. There were three or four other correctional officers in E-Pod with 10 Oliver at the time. Id. No. 7. 11 As a precaution, Oliver went to his office on the first floor to retrieve a shotgun equipped 12 with Accusox less-lethal bean bag rounds. PSDF No. 2. The inmates were still gathered on the 13 lower tier of E-Pod when Oliver returned and a large-scale riot suddenly broke out. Id. No. 3. 14 Montez was punched, kicked and otherwise accosted by other inmates during the riot. Id. No. 11. 15 The correctional officers present in E-Pod had pepper spray and batons available to them. Id. No. 16 5. One of the correctional officers also had a PepperBall gun, but it kept malfunctioning. Id. No. 6. 17 Oliver and other officers gave verbal commands to the inmates along the lines of “get 18 down on the ground” and “stop fighting.” PSDF No. 4; see also Doc. No. 27-1 at 2:19-3:12.3 19 Oliver racked a round in the shotgun, PSDF No. 7; see also Doc. No. 27 at 4:2-5:23, and fired a 20 21

22 1 Defendants request to seal jail surveillance video and certain screen shots from jail surveillance video relating to this motion on the grounds that they contain confidential information subject to the Court’s March 22, 2019 Protective 23 Order (Doc. No. 15). Doc. No. 25. The Court did not have cause to review the materials in question in deciding this motion and will deny the request as moot in light of this Order. 24 2 The facts set forth in this section are undisputed. “JSUMF” refers to the Joint Statement of Undisputed Material 25 Facts filed concurrently with Defendants’ motion, as Docket No. 24-5. “PSDF” refers to Plaintiff’s Statement of Disputed Facts filed concurrently with Plaintiff’s opposition to this motion, as Docket No. 26. The PSDF itself 26 contains several undisputed facts.

27 3 Plaintiff contends these commands were inaudible and that dropping to the ground on command during a riot can result in serious injury from kicking, stomping and such. PSDF No. 4. Plaintiff concedes, however, that Oliver “order[ed] inmates to get on the ground” before discharging his shotgun. Id. No. 4. 1 first bean bag round at a group of fighting inmates shortly after entering E-Pod.4 PSDF No. 8; see 2 also Doc. No. 27-1 at 6:1-17. 3 Oliver was approximately 20 feet away from Montez when he fired the bean bag that 4 struck Montez. JSUMF No. 8. Montez was struck on the left side of his face, resulting in a broken 5 jaw and stitches to Montez’s left cheek. PSDF No. 17. Oliver did not aim for Montez and did not 6 intend to strike Montez with the shot. Id. Nos. 13-14. 7 Oliver reassessed the situation after firing two shots. PSDF No. 15. He subsequently fired 8 two more shots but did not fire any rounds once all inmates were on the ground and additional 9 correctional officers had arrived to provide assistance. Id. No. 16. Oliver deployed a total of four 10 bean bag rounds during the riot. JSUMF No. 9. 11 Plaintiff filed this action in October 2018, asserting claims against Oliver, the County of 12 Fresno, and various fictitious defendants referred to as “Unknown Law Enforcement Officers” for: 13 (i) excessive force in violation of 42 U.S.C. § 1983; (ii) battery; and (iii) negligence. Doc. Nos. 1 14 & 5. 15 The Corrected Complaint alleges that this Court has original jurisdiction over the Section 16 1983 claim under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over the state law 17 claims for battery and negligence under 28 U.S.C. § 1367. Doc. No. 5 ¶ 1. 18 RULE 56(a) FRAMEWORK 19 Summary judgment is proper when it is demonstrated that there exists no genuine issue as 20 to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. 21 Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi- 22 Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears 23 the initial burden of informing the court of the basis for its motion and of identifying the portions 24 of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine 25 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty 26

27 4 Plaintiff contends that he retreated as the fighting in E-Pod began and that he was struck by another inmate at the same time he was struck “by the less lethal shot fired by [] Oliver,” but does not otherwise dispute this fact. See PSDF 1 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 2 Where the moving party will have the burden of proof on an issue at trial, the movant must 3 affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. 4 Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an 5 issue at trial, the movant may prevail by presenting evidence that negates an essential element of 6 the non-moving party’s claim or by merely pointing out that there is an absence of evidence to 7 support an essential element of the non-moving party’s claim. See James River Ins. Co. v. Herbert 8 Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party 9 fails to carry its burden of production, then “the non-moving party has no obligation to produce 10 anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan 11 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party 12 meets its initial burden, the burden then shifts to the opposing party to establish that a genuine 13 issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 14 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. If the nonmoving party fails to produce 15 evidence sufficient to create a genuine issue of material fact, the moving party is entitled to 16 summary judgment. Nissan Fire, 210 F.3d at 1103. 17 DEFENDANTS’ MOTION 18 I. Federal Cause of Action Under 42 U.S.C. § 1983 19 Defendants contend that Montez’s first cause of action for excessive force under Section 20 1983 is properly analyzed under the Eighth Amendment to the Unites States Constitution and that, 21 to prevail on his claim, Montez must show that “jail officials applied force maliciously and 22 sadistically to cause harm.” Doc. No. 24-1 at 4:16-26; see Hudson v. McMillian, 503 U.S. 1, 6-7 23 (1992) (stating that the “core judicial inquiry” in cases involving the use of force by prison 24 officials is “whether force was applied in a good-faith effort to maintain or restore discipline, or 25 maliciously and sadistically to cause harm”). Defendants concede that Montez’s injuries were not 26 “de minimis or insignificant,” but argue that Montez cannot show a Section 1983 violation given 27 the nature of the riots, the lack of viable alternatives for quelling the riots, attempts by Oliver to 1 Montez. Doc. No. 24-1, Part IV.A. 2 Montez, for his part, expressly concedes in the opposition that the “malicious and sadistic” 3 standard applies and that he cannot prevail on his Section 1983 claim. Doc. No. 26 at 1:22-26. 4 In light of the argument and evidence set forth in the briefing and, most important, 5 Montez’s express concession that he cannot establish a Section 1983 violation based on the facts 6 of this case, the Court will grant summary judgment in Defendants’ favor on Plaintiff’s first cause 7 of action. 8 II. State Law Claims for Battery and Negligence 9 In light of the foregoing, state law claims for battery and negligence are all that remain in 10 this case. Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise jurisdiction over 11 supplemental state law claims if “the district court has dismissed all claims over which it has 12 original jurisdiction.” The general rule is “when federal claims are dismissed before trial ... 13 pendent state claims should also be dismissed.” Religious Tech. Ctr v. Wollersheim, 971 F.2d 364, 14 367-68 (9th Cir. 1992); Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985). Considering 15 judicial economy, convenience, fairness, and comity, and because summary judgment has been 16 granted on Montez’s one and only federal claim, the Court will decline to exercise supplemental 17 jurisdiction over the state claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 18 (1988); City of Colton v. American Promotional Events, Inc.-West, 614 F.3d 998, 1008 (9th Cir. 19 2010) (“Because the district court did not err in granting summary judgment on the federal claims, 20 it did not abuse its discretion in dismissing the state-law claims.”); Religious Tech., 971 F.2d at 21 367-68; Neylon v. Inyo County, 2018 WL 3740535, *56-*57 (E.D. Cal. Aug. 3, 2018). 22 III. Unknown Law Enforcement Officers 23 Defendants argue that the “Unknown Law Enforcement Officers” included among the 24 Defendants in the Corrected Complaint should be dismissed from this action with prejudice under 25 Rule 4(m) of the Federal Rules of Civil Procedure because a year and a half has passed since the 26 filing of the Complaint (and Corrected Complaint) and Montez “has not identified or served a 27 single individual to substitute in” for fictitious Defendants. No. 24-1, Part IV. 4.10 □□ □□ □□□ RPAIVE OU PIR ee TAY VY

1 Section 1983 claim and declined to exercise jurisdiction over the remaining claims in this 2 | action, this issue is moot. The Court will thus deny the Defendants’ motion as to the dismissal of 3 Unknown Law Enforcement Officers. 4 ORDER 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Defendants’ motion for summary judgment (Doc. No. 24) is GRANTED as to all 7 Defendants with respect to Montez’s cause of action under 42 U.S.C. § 1983; 8 2. Pursuant to 28 U.S.C. § 1367(c)(3), the Court DECLINES to exercise supplemental 9 jurisdiction over Montez’s state law battery and negligence claims; 10 3. Defendants’ motion for dismissal of Unknown Law Enforcement Officers from this 11 action (Doc. No. 24) is DENIED as moot; 12 4. Defendants’ request to seal records (see Doc. No. 25) is DENIED as moot; 13 4. Allcurrently set dates and deadlines are VACATED; and 14 5. The Clerk is directed to CLOSE this case. 15 16 |TT IS SO ORDERED. Dated: _ June 25, 2020 : : Z 18 _-SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28