Williams 124345 v. Winget

Opinion

1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 DaJuan Torrell Williams, No. CV 19-05096-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 Unknown Winget, et al., 13 Defendants.

14 15 Plaintiff DaJuan Torrell Williams, who is currently confined in Arizona State Prison 16 Complex (ASPC)-Eyman, Browning Unit in Florence, Arizona, brought this civil rights 17 case pursuant to 42 U.S.C. § 1983. (Doc. 16.) Defendant Tribolet moves for summary 18 judgment, and Plaintiff opposes the motion.1 (Docs. 116, 121.) Also before the Court is 19 Plaintiff’s Motion for a New Trial. (Doc. 122.) 20 I. Background 21 On screening Plaintiff’s First Amended Complaint (Doc. 16) under 28 U.S.C. 22 § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment excessive force 23 claims against Correctional Officers (“CO”) Winget, Tribolet, Verdugo, Valencia, 24 Villanueva, Cornejo, and Lopez in Counts One through Seven, and directed them to 25 answer. (Doc. 17.) The Court dismissed the remaining claims and Defendants. (Id.) 26 27

28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 118.) 1 On February 26, 2021, Defendants Winget, Verdugo, Valencia, and Cornejo were 2 subsequently dismissed from this action for failure to serve pursuant to Fed. R. Civ. P. 3 4(m). (Doc. 72.) Thereafter, Defendants Villanueva, Lopez, and Tribolet moved for 4 summary judgment and argued that they did not use excessive force against Plaintiff. (Doc. 5 74.) The Court granted summary judgment to Defendants Villanueva and Lopez and 6 denied summary judgment to Defendant Tribolet without prejudice and with leave to file a 7 second motion for summary judgment limited solely to the claim against Defendant 8 Tribolet. (Doc. 115.) 9 Before the Court is Defendant Tribolet’s Second Motion for Summary Judgment in 10 which he argues that he was not present during the alleged May 9, 2018 incident that gave 11 rise to Plaintiff’s excessive force claim against Defendant Tribolet in this action. (Doc. 12 116.) 13 II. Summary Judgment Standard 14 A court must grant summary judgment “if the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 16 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 17 movant bears the initial responsibility of presenting the basis for its motion and identifying 18 those portions of the record, together with affidavits, if any, that it believes demonstrate 19 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 20 If the movant fails to carry its initial burden of production, the nonmovant need not 21 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 22 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 23 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 24 contention is material, i.e., a fact that might affect the outcome of the suit under the 25 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 26 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 27 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 28 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 1 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 2 it must “come forward with specific facts showing that there is a genuine issue for trial.” 3 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 4 citation omitted); see Fed. R. Civ. P. 56(c)(1). 5 At summary judgment, the judge’s function is not to weigh the evidence and 6 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 7 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 8 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 9 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 10 III. Relevant Facts2 11 On May 8, 2018, Plaintiff was housed at the ASPC-Yuma, Dakota Unit. (Doc. 117 12 (Def.’s Statement of Facts) ¶ 1.) On May 9, 2018, Plaintiff was transferred to the ASPC- 13 Eyman, Browning Unit. (Id. ¶ 2.) 14 On May 13, 2018, Plaintiff submitted an informal complaint claiming that upon his 15 arrival to Browning he was subjected to acts of retaliation from Sergeant Winget. (Id. ¶ 16 3.) Plaintiff claimed that, upon his arrival, he was subjected to derogatory remarks and 17 that, while strapped to a gurney, unknown officers and Sergeant Winget purposely 18 “banged” his arms into objects as they transported him. (Id. ¶ 4.) Plaintiff also claimed 19 that when they finished transporting him to his cell, they ordered him to shave his beard 20 but only provided what Plaintiff identified as unsanitary hair clippers, and when Plaintiff 21 refused to use these clippers, they held his arms and shaved his face. (Id. ¶¶ 5–6.) 22 In his First Amended Complaint, Plaintiff asserts that on or about May 9, 2018 23 several COs, including Defendant Tribolet, “engaged in excessive force by banging the 24 gurney in which [Plaintiff] was strapped and secured to face down [sic], in shackles and 25

26 2 Because Plaintiff failed to file a response or controverting statement of facts, the Court will consider Defendants’ facts undisputed unless they are clearly controverted by 27 Plaintiff’s first-hand allegations in the verified First Amended Complaint or other evidence on the record. Where the nonmovant is a pro se litigant, the Court must consider as 28 evidence in opposition to summary judgment all the nonmovant’s contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 1 handcuffs, into walls and structures and attempting to brake [sic] [Plaintiff’s] arm when 2 [his] elbow was slammed into and caught in the bars of the wing gate” and that they 3 “forcefully applied contaminated, unsanitary, and bio-hazardous clippers to [Plaintiff’s] 4 face and ‘force shaving’ [Plaintiff.]” (Doc. 16 at 6–8.) 5 In a signed declaration, Defendant Tribolet asserts that on May 9, 2018, he was 6 stationed as the control room officer at Browning Unit, Dog cluster. (Doc. 117-3 (Tribolet 7 Decl.) ¶ 4.) As the control room officer, Defendant Tribolet’s duties included monitoring 8 the areas for which he was responsible, managing prisoner and correctional staff movement 9 while unlocking and locking electronic doors, and maintaining the correctional service log. 10 (Id. ¶ 5.) A control room officer is not involved in physically assisting with prisoner 11 movement or intake. (Id. ¶ 6.) 12 Defendant Tribolet asserts that on May 9, 2018, he was not involved with moving 13 Plaintiff, Plaintiff’s intake, or with any attempt to force Plaintiff to shave. (Id. ¶¶ 7–9.) 14 Defendant Tribolet asserts that he did not witness anyone forcibly shave Plaintiff and that 15 he had no direct interaction with Plaintiff on May 9, 2018. (Id. ¶¶ 9–10.) 16 IV. Discussion 17 Use of excessive force against a prisoner violates the prisoner’s Eighth Amendment 18 right to be free from cruel and unusual punishment. Graham v. Connor, 490 U.S. 386, 19 39394 (1989). The use of force is constitutional if it is used in a good faith effort to keep 20 or restore discipline; it is unconstitutional if it is used “maliciously and sadistically for the 21 very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986). Not 22 “every malevolent touch by a prison guard gives rise to a federal cause of action”; thus, de 23 minimis uses of physical force, provided that use of force is not “repugnant to the 24 conscience of mankind,” do not offend the Constitution. Hudson v. McMillan, 503 U.S. 1, 25 9–10 (1992). 26 Defendant Tribolet has presented evidence that he was stationed in the control room 27 on May 9, 2018 and that he was not involved in the incident described by Plaintiff in the 28 First Amended Complaint and in his informal complaint submitted on May 13, 2018. In 1 his two-page response to the Motion for Summary Judgment, Plaintiff responds as follows: 2 Plaintiff disputes that Defendant Tribolet did not witness the use of force and events perpetrated against Plaintiff on May 9, 3 2018 . . . as the control room officer’s presence, visual, and 4 awareness, as the person responsible for electronically opening and securing all cell and security doors and as the only person 5 with the vantage point of being able to see all inmates/cells and 6 surrounding areas at once . . . is mandated and constantly required for all inmate movement and staff interactions and the 7 operation of the prisons[.] Notwithstanding, Plaintiff cannot in 8 good faith raise any genuine disputes as to any material fact in light of the evidence presented by Defendants showing that 9 Defendant Tribolet was not an actual participant in the May 9, 10 2018 events alleged in Plaintiff’s complaints. 11 (Doc. 121 at 1–2.) Thus, it does not appear that Defendant Tribolet was actually present 12 during the May 9, 2018 incident when Plaintiff’s gurney was banged into the wall and he 13 was forcefully shaved. To the extent Plaintiff argues that because Defendant Tribolet was 14 the control room officer, and therefore must have seen the incident, Plaintiff’s argument is 15 speculative and is not based on his own personal knowledge because he was not present in 16 the control room with Defendant Tribolet. Plaintiff’s unsupported assertions are therefore 17 insufficient to create a genuine issue of material fact about whether Defendant Tribolet 18 witnessed the May 9, 2018 incident or that he was in a position to intervene in the incident 19 and failed do so. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support 20 or oppose a motion must be made on personal knowledge, set out facts that would be 21 admissible in evidence, and show that the affiant or declarant is competent to testify on the 22 matters stated.”). 23 V. Motion for a New Trial 24 Plaintiff seeks “a new trial and/or to alter or amend judgement” regarding the 25 Court’s March 2, 2022 Order (Doc. 115) granting summary judgment to Defendants 26 Villanueva and Lopez. (Doc. 122.) 27 The Court will ordinarily deny a motion for reconsideration of 28 an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence. Any such 1 motion shall point out with specificity the matters that the 2 movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court’s attention 3 for the first time and the reasons they were not presented 4 earlier, and any specific modifications being sought in the Court’s Order. No motion for reconsideration of an Order may 5 repeat any oral or written argument made by the movant in 6 support of or in opposition to the motion that resulted in the Order. Failure to comply with this subsection may be grounds 7 for denial of the motion. 8 9 LRCiv 7.2(g)(1). 10 Rule 60(b), which sets forth the grounds for relief from an order,3 “provides for 11 reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; 12 (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged 13 judgment; or (6) ‘extraordinary circumstances’ which would justify relief.” School Dist. 14 No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 15 omitted). The moving party bears the burden of proving the existence of a basis for Rule 16 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988). Although the 17 moving party’s factual allegations are to be accepted as true, mere legal conclusions, 18 general denials, or simple assertions are insufficient to justify overturning the underlying 19 judgment. Id. 20 Here, Plaintiff argues that contrary to Defendants’ claim that Plaintiff was 21 attempting to incite other prisoners, Plaintiff submitted evidence showing that he was not 22 yelling at other prisoners or trying to get them to riot and that the other prisoners were 23 restrained behind a metal fence and did not pose a threat to Defendants Villanueva and 24 Lopez at the time. (Doc. 122 at 4–6.) Plaintiff argues that the Court “made improper 25 evidentiary determinations” when it granted summary judgment to Defendants Villanueva 26 27

28 3 Although Plaintiff cites Rule 59 and seeks relief from “judgment,” no judgment has yet entered in this action. 1 and Lopez. (Id. at 7.)4 But this is not the case. In fact, the Court construed in Plaintiff’s 2 favor that while Plaintiff was being escorted from the kitchen after he assaulted multiple 3 officers, Defendant Villanueva yanked on Plaintiff’s shirt and attempted to stuff Plaintiff’s 4 shirt collar when Plaintiff began talking to other prisoners who were in a holding area 5 outside of the kitchen. (See Doc. 115 at 12.) The Court also construed in Plaintiff’s favor 6 that he was not yelling at or inciting the other prisoners and was only engaging in normal 7 conversation with them as he was being escorted past them. (See id.) Notwithstanding, 8 the facts did not create a material issue of fact as to whether Defendants’ conduct amounted 9 to a malicious and sadistic use of force, and this finding was supported by the video 10 recording of Plaintiff being escorted out of the kitchen. See Scott v. Harris, 550 U.S. 372, 11 380-81 (2007) (a court may properly consider video evidence in ruling on a motion for 12 summary judgment, and where the nonmovant’s version of facts is blatantly contradicted 13 by a videotape, the court should view the facts “in the light depicted by the videotape”). 14 Based on the foregoing, the Court finds no basis to reconsider its Order granting 15 summary judgment to Defendants Villanueva and Lopez, and Plaintiff’s motion will be 16 denied. 17 … 18 … 19 … 20 … 21 … 22 … 23 … 24

25 4 Plaintiff also asserts that “Defendant Villanueva repeatedly shouted racial slur[]s at Plaintiff” (Doc. 122 at 6), and although such behavior is not commendable, “[v]erbal 26 harassment or abuse is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Further, to the extent 27 Plaintiff argues that Defendant Villanueva’s use of force “was in retaliation for Plaintiff having assaulted staff,” the Court dismissed Plaintiff retaliation claim at screening. (See 28 Doc. 17 at 4 (“Assault is not protected conduct and Plaintiff therefore fails to state a retaliation claim.”). ITIS ORDERED: 2 (1) The reference to the Magistrate Judge is withdrawn as to Defendant Tribolet’s Motion for Summary Judgment (Doc. 116) and Plaintiff's Motion for a New Trial (Doc. 122). 5 (2) Defendant Tribolet’s Motion for Summary Judgment (Doc. 116) is granted. 6 (3) Plaintiff's Motion for a New Trial (Doc. 122) is denied. 7 (4) The Clerk of Court must terminate the action and enter judgment 8 | accordingly. 9 Dated this 4th day of May, 2022. 10 Micha T. Sihurde Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28