1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDREW LOPEZ, Case No. 21-cv-07136-PJH

8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT

10 D. C. THOMAS, Re: Dkt. Nos. 29, 39, 40, 47 Defendant. 11

12 13 This is a civil rights case brought pro se by a state prisoner under

1983. His claims arise from his detention at Pelican Bay State Prison (“PBSP”). Plaintiff 15 alleges that defendant Correctional Officer Thomas used excessive force against plaintiff 16 while stopping a fight. Plaintiff filed a motion for summary judgment on the merits, and 17 defendant filed a motion for summary judgment citing administrative exhaustion and on 18 the merits. Defendant also included video footage of the incident. The parties filed 19 oppositions and replies to the respective motions. The court has reviewed all of the 20 filings and video evidence, and for the reasons set forth below, defendant’s motion for 21 summary judgment is granted and plaintiff’s motion for summary judgment is denied. 22 MOTION FOR SUMMARY JUDGMENT 23 Legal Standard 24 Summary judgment is proper where the pleadings, discovery and affidavits show 25 that there is "no genuine dispute as to any material fact and the movant is entitled to 26 judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may 27 affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,

, 248 1 reasonable jury to return a verdict for the nonmoving party.

2 The moving party for summary judgment bears the initial burden of identifying 3 those portions of the pleadings, discovery and affidavits which demonstrate the absence 4 of a genuine issue of material fact. Celotex Corp. v. Catrett,

(1986); 5 Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

, 1102 (9th Cir. 2000). When 6 the moving party has met this burden of production, the nonmoving party must go beyond 7 the pleadings and, by its own affidavits or discovery, set forth specific facts showing that 8 there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough 9 evidence to show a genuine issue of material fact, the moving party wins. Id. 10 At summary judgment, the judge must view the evidence in the light most 11 favorable to the nonmoving party. If evidence produced by the moving party conflicts 12 with evidence produced by the nonmoving party, the judge must assume the truth of the 13 evidence set forth by the nonmoving party with respect to that fact. See Tolan v. Cotton, 14

(2014); Leslie v. Grupo ICA,

(9th Cir. 1999). 15 Exhaustion 16 “The PLRA [Prison Litigation Reform Act] mandates that inmates exhaust all 17 available administrative remedies before filing ‘any suit challenging prison conditions,’ 18 including, but not limited to, suits under § 1983.” Albino v. Baca,

, 1171 19 (9th Cir. 2014) (quoting Woodford v. Ngo,

(2006)). To the extent that the 20 evidence in the record permits, the appropriate procedural device for pretrial 21 determination of whether administrative remedies have been exhausted under the PLRA 22 is a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 23 Id. at 1168. The burden is on the defendant to prove that there was an available 24 administrative remedy that the plaintiff failed to exhaust. Id. at 1172. If the defendant 25 meets that burden, the burden shifts to the prisoner to present evidence showing that 26 there is something in his particular case that made the existing and generally available 27 administrative remedies effectively unavailable to him. Id. The ultimate burden of proof 1 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary 2 judgment under Rule 56. Id. at 1166. But if material facts are disputed, summary 3 judgment should be denied and the district judge rather than a jury should determine the 4 facts in a preliminary proceeding. Id. 5 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake,

632, 642 (2016). An administrative remedy is unavailable “when (despite what 7 regulations or guidance materials may promise) it operates as a simple dead end with 8 officers unable or consistently unwilling to provide any relief to aggrieved inmates’; or 9 when “an administrative scheme [is] so opaque that it becomes, practically speaking, 10 incapable of use, [i.e.,] some mechanism exists to provide relief, but no ordinary prisoner 11 can discern or navigate [the mechanism]”; or “when prison administrators thwart inmates 12 from taking advantage of a grievance process through machination, misrepresentation, or 13 intimidation.”

. 14 Eighth Amendment 15 The treatment a convicted prisoner receives in prison and the conditions under 16 which he is confined are subject to scrutiny under the Eighth Amendment. Helling v. 17 McKinney,

(1993). “After incarceration, only the unnecessary and 18 wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the 19 Eighth Amendment.” Whitley v. Albers,

(1986) (omission in original) 20 (internal quotation marks and citation omitted). When a prison official stands accused of 21 using excessive force in violation of the Eighth Amendment, the core judicial inquiry is 22 whether force was applied in a good-faith effort to maintain or restore discipline, or 23 maliciously and sadistically to cause harm. Hudson v. McMillian,

(1992). 24 In determining whether the use of force was for the purpose of maintaining or 25 restoring discipline, or for the malicious and sadistic purpose of causing harm, a court 26 may evaluate the need for application of force, the relationship between that need and 27 the amount of force used, the extent of any injury inflicted, the threat reasonably 1 forceful response.

; see, e.g., Simmons v. Arnett,

(9th Cir. 2 2022) (guard’s decision to shoot the closer of two fighting inmates with sponge rounds, 3 which was the lowest level of force available to him, to stop the fight and keep staff and 4 prisoners safe was not an excessive use of force). 5 Qualified Immunity 6 The defense of qualified immunity protects “government officials . . . from liability 7 for civil damages insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.” Harlow v. 9 Fitzgerald,

(1982). The rule of “qualified immunity protects ‘all but the 10 plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz,

194, 202 (2001) (quoting Malley v. Briggs,

(1986)). Defendants can 12 have a reasonable, but mistaken, belief about the facts or about what the law requires in 13 any given situation. Id. at 205. A court considering a claim of qualified immunity must 14 determine whether the plaintiff has alleged the deprivation of an actual constitutional right 15 and whether such a right was clearly established such that it would be clear to a 16 reasonable officer that his conduct was unlawful in the situation he confronted. See 17 Pearson v. Callahan,

(2009) (overruling the sequence of the two-part 18 test that required determining a deprivation first and then deciding whether such right was 19 clearly established, as required by Saucier). The court may exercise its discretion in 20 deciding which prong to address first, in light of the particular circumstances of each 21 case. Pearson,

. 22 Facts 23 A review of the record indicates that the following facts are undisputed unless 24 otherwise noted: 25 Incident 26 On November 18, 2018, at approximately 12:30 p.m., plaintiff was on the yard with 27 inmate Ramirez and the two were walking around a track. MSJ, Thomas Decl. ¶ 4; Duan 1 Decl., Ex. D. Plaintiff’s Deposition at 58-59.1 As they were walking, inmate Raper called 2 to them, but plaintiff was not sure if Raper was calling to him or Ramirez. Plaintiff’s 3 Deposition at 61. Plaintiff and Ramirez walked towards Raper. Id.; Duan Decl. Ex. B 4 Video Footage #35913292 at 12:30:58. Raper and Ramirez exchanged words about 5 “disrespect” and then Raper “started swinging.” Plaintiff’s Deposition at 63. Plaintiff and 6 Ramirez are acquaintances. Id. at 66-67. Plaintiff did not know Raper and did not know 7 why Ramirez and Raper were interacting. Id. 8 Plaintiff, Ramirez and Raper began to fight. Video Footage #35913292 at 9 12:31:04. Plaintiff participated in the altercation and did “make a few swings” to “defend 10 himself.” Plaintiff’s Deposition at 121. Plaintiff hit Raper with his fists. Video Footage 11 #35913292 at 12:31:03-12:31:20. 12 At the start of the fight defendant Thomas heard an unidentified correctional officer 13 yell “get down.” MSJ, Thomas Decl. ¶ 4. Defendant looked around the yard and 14 observed three inmates hitting each other in the face and upper torso area with their fists. 15 Id. Defendant responded to the situation because, based on his training and experience, 16 serious bodily injury could occur if the fight continued. Id. ¶ 5. 17 As the fight continued, Raper grabbed plaintiff’s jacket and held onto it while he hit 18 Ramirez. Plaintiff’s Deposition at 66. Plaintiff responded by hitting Raper and twisting his 19 arm. Id. at 73, 75; Video Footage #35913292 at 12:31:07. Plaintiff stated that he was 20 only trying to free himself from Raper’s grip. Plaintiff’s Deposition at 73. Plaintiff broke 21 free from Raper’s grip but reengaged in the fight. Video Footage #35913292 at 12:31:10- 22 11. 23 Correctional officers gave multiple verbal warnings to stop fighting and get down. 24 Thomas Decl. ¶¶ 4, 7. Smoke grenades were deployed near the fight, but the three 25 continued fighting. Id. ¶ 6; Video Footage #35913292 at 12:31:14. Plaintiff did not recall 26

27 1 To the extent plaintiff argues that the deposition should be stricken pursuant to Federal 1 hearing anyone order them to “get down,” but conceded the order was likely given 2 because “that’s the protocol”. Plaintiff’s Deposition at 77-78. Plaintiff did witness smoke 3 in the area. Id. at 77. 4 Correctional officers, including defendant, proceeded to the area, but they did not 5 have time to discuss a strategy. Thomas Decl. ¶ 7. Based on his training and 6 experience, defendant knew that when responding to an incident such as this, staff is 7 expected to evaluate the totality of the circumstances involved, including an inmate’s 8 actions, demeanor, and behavior, in an effort to determine the best course of action and 9 tactics needed to resolve the situation. Id. ¶ 3. 10 As staff responded, Raper lost his balance and fell to the ground, leaving 11 approximately eight feet between Raper and plaintiff. Plaintiff’s Deposition at 78-79; 12 Video Footage #35913292 at 12:31:18. At this time, Ramirez was also on the ground. 13 Plaintiff’s Deposition at 80; Video Footage #35913292 at 12:31:19. Plaintiff remained 14 standing. Video Footage #35913292 at 12:31:24. 15 At this time approximately nine correctional officers arrived. Video Footage 16 #35913292 at 12:31:23. Based on how the other correctional officers dispersed into the 17 area, defendant believed he was in a better position to respond to plaintiff and allow the 18 other officers to respond to Raper and Ramirez. Thomas Decl. ¶ 8; Video Footage 19 #35913292 at 12:31:25. 20 Defendant observed plaintiff standing in a combative stance near Raper, who by 21 this time had stood back up. Thomas Decl. ¶ 8; Video Footage #35913292 at 12:31:26. 22 Defendant also observed that plaintiff was not getting on the ground. Id. To get plaintiff 23 to comply with the commands to get down and to stop further escalation of the fight, 24 defendant used a single forward strike with his baton to plaintiff’s upper leg. Thomas 25 Decl. ¶ 8; Video Footage #35913292 at 12:31:28. Defendant had to stretch out to strike 26 plaintiff’s leg, causing defendant to lose his balance and fall down. Thomas Decl. ¶ 8; 27 Video Footage #35913292 at 12:31:28. Plaintiff remained in a standing position, for a 1 Defendant stood up and gave plaintiff another verbal command to get down, and plaintiff 2 complied. Thomas Decl. ¶ 8; Video Footage #35913292 at 12:31:30. 3 Plaintiff was then restrained, taken away for a medical evaluation and offered new 4 clothes that were not contaminated with smoke. Thomas Decl. ¶¶ 9, 10. Plaintiff’s leg 5 was in pain for three months, and he had a large black bruise on the leg for three months. 6 Docket No. 29-1 at 1. 7 Administrative Appeals 8 For the relevant time period, the California Department of Corrections and 9 Rehabilitation (“CDCR”) provided an administrative appeals process, in accordance with 10 Title 15 of the California Code of Regulations, that permitted an inmate to appeal any 11 departmental decision, action, condition, or policy that has a material adverse effect on 12 the inmate’s health, safety, or welfare.

(a) (repealed 13 2021). To resolve their issues through the administrative appeals process, inmates must 14 have submitted a CDCR 602 Form, commonly referred to as an appeal form, describing 15 the issue and action requested.

(a) (repealed 2021). 16 At the time of this incident, the inmate appeal process consisted of three levels of 17 appeal: (1) first-level appeal, (2) second-level appeal to the institution head or designee, 18 and (3) third-level appeal to the Secretary of CDCR.

19 (repealed 2021). First- and second-level appeals were handled by staff located at the 20 respective institutions.

Third-level nonmedical appeals were received and decided by 21 CDCR staff at the Office of Appeals.

(d) (repealed 22 2021). An inmate needed to exhaust all three levels of review for an appeal to be 23 considered exhausted.

(b); 3084.7 (repealed 2021). 24 Plaintiff is familiar with the administrative appeal process and has filed 25 approximately 500 appeals. Plaintiff Deposition at 93. Plaintiff filed two appeals 26 regarding the November 18, 2018, incident. MSJ, Moseley Decl. ¶¶ 8, 9. 27 In appeal No. PBSP-18-03389, plaintiff raised issues with the rules violation report 1 that he was erroneously found guilty of fighting with another inmate and that the guilty 2 finding should be reversed. There was no mention in the appeal of excessive force being 3 used against him or defendant.

This appeal was exhausted through the third level of 4 review. Moseley Decl. ¶ 9; Ex. 2. 5 Plaintiff also filed appeal No. PBSP-20-00630, in which he alleged that prison 6 officials never disclosed a confidential memorandum related to the incident.

; Ex. 7 3. This appeal was screened out and never reached the final, third level, of review.

8 ANALYSIS 9 Exhaustion 10 In this case defendant demonstrated that there was an available administrative 11 remedy that plaintiff failed to exhaust. Plaintiff has failed to meet his burden in showing 12 that the administrative appeals process in general was unavailable and incapable of use 13 or that there was something in his particular case that made the existing and generally 14 available administrative remedies effectively unavailable to him. 15 It is undisputed that only one appeal related to the fight in the yard was submitted 16 and fully exhausted. That appeal, No. PBSP-18-03389, raised issues with the rules 17 violation report plaintiff received for being involved in the fight, arguing that plaintiff was 18 erroneously found guilty of fighting with the other inmate and that the guilty finding should 19 be reversed. The appeal did not mention excessive force or defendant. 20 In Griffin v. Arpaio,

(9th Cir. 2009), the Ninth Circuit noted that “the 21 primary purpose of a grievance is to alert the prison to a problem and facilitate its 22 resolution, not to lay groundwork for litigation.”

. In Griffin, the plaintiff failed to 23 mention in his grievance that prison staff were ignoring a nurse’s order that remedied the 24 problem.

. As a result the prison officials, who were aware of the nurse’s 25 order, reasonably believed that the order had been carried out and had solved the 26 problem. In view of these facts, the Ninth Circuit concluded that the plaintiff failed to 27 properly exhaust his administrative remedies because he did not provide notice of the 1 nature of his problem.”

. 2 Similar to Griffin, plaintiff failed to sufficiently alert prison officials to the nature of 3 his problem. The one appeal he submitted and exhausted failed to mention both the 4 defendant and claim in this case. Prison officials could not know from this appeal that 5 plaintiff was alleging he was the victim of excessive force by defendant. 6 Plaintiff argues that while he did not discuss the excessive force in the appeal, he 7 raised the issue verbally in an interview about the appeal with a prison official. 8 Opposition (Docket No. 45) at 12. Plaintiff states that he was informed by this official that 9 he would receive a separate response regarding the allegation of excessive force by 10 defendant, but he never received a response. Plaintiff further states that the prison 11 official who provided this information retired and he was never informed that he had to file 12 a separate appeal. Id. at 12-13. 13 Plaintiff’s argument is unavailing. Proper exhaustion during the relevant time 14 period required a substantive decision at each level of review.

3084.1(b). An inmate could not circumvent the appeals process by raising new issues for 16 the first time at the second or third level of review.

3084.6(b)(16). 18 Plaintiff’s inclusion of a new allegation during an interview that occurred after the 19 filing of his appeal was improper and did not exhaust his claim. The PLRA’s exhaustion 20 requirement cannot be satisfied “by filing an untimely or otherwise procedurally defective 21 administrative grievance or appeal.” Woodford v. Ngo,

(2006). “Proper 22 exhaustion demands compliance with an agency’s deadlines and other critical procedural 23 rules because no adjudicative system can function effectively without imposing some 24 orderly structure on the course of its proceedings.”

(footnote omitted). 25 Nor does plaintiff provide more information to support his assertion that he was not 26 informed that he had to file a separate appeal with the excessive force claim. Plaintiff 27 noted in his deposition that he was familiar with the appeals system and had filed 1 remedies. Even assuming plaintiff did properly exhaust, as will be discussed below, his 2 claim fails on the merits. 3 Excessive Force 4 There are no facts in dispute in this case. It is undisputed that while plaintiff did 5 not initiate the fight with the other inmate, plaintiff was fighting and continued to fight 6 when he could have moved away. It is also undisputed that plaintiff continued to fight 7 after smoke grenades were deployed among plaintiff and the other inmates. It is also 8 undisputed that defendant struck plaintiff once on the leg with a baton while plaintiff was 9 in a combative stance near the other inmate and not complying with orders to get on the 10 ground. 11 Even looking at the evidence in the light most favorable to plaintiff, defendant is 12 entitled to summary judgment. After viewing the video and other evidence submitted, 13 there is nothing to support plaintiff’s assertion that defendant’s one baton strike to the leg 14 was for the malicious and sadistic purpose of causing him harm. 15 The evidence demonstrates that the three inmates were engaged in a fight and did 16 not stop even when they were enveloped in smoke. Multiple correctional officers 17 responded immediately to stop the fight in order to prevent any serious injuries. Plaintiff 18 was in a combative stance in close proximity to the inmate he was fighting when 19 defendant struck him once on the leg with the baton. No other force was used against 20 plaintiff once he lowered himself to the ground. Defendant has met his burden in 21 demonstrating the use of force was to maintain or restore discipline and prevent the 22 fighting inmates from suffering further injuries. 23 The Ninth Circuit recently found that there was no constitutional violation when a 24 correctional officer fired three sponge-tipped plastic rounds at an inmate who was 25 engaged in a fight despite the rounds breaking the inmate’s leg and injuring his butt and 26 thigh. Simmons,

. Similar to the instant case, the Ninth Circuit noted that 27 there was no improper motive and that the correctional officer had a duty to keep staff

, at *6 (N.D. Cal. Sept. 16, 2021) (holding a defendant’s use of a more lethal 2 weapon, a 40-mm. launcher, to stop a plaintiff and another inmate from fighting was 3 reasonable given the circumstances: that the inmates continued to fight, ignoring verbal 4 commands and chemical agent grenades dispersed to the area, and defendant intended, 5 in good-faith, to restore discipline with his conduct and did not intend to act maliciously 6 and sadistically to cause harm to the plaintiff.) For all these reasons, summary judgment 7 is granted for defendant. 8 The court has not found a constitutional violation, and even if there was a violation, 9 defendant would be entitled to qualified immunity. It would not have been clear to a 10 reasonable official that striking an inmate once in the leg with a baton was unlawful when 11 the inmate had been fighting and remained in a combative stance near the opposing 12 inmate. Defendant is entitled to qualified immunity. 13 CONCLUSION 14 1. For the reasons set forth above, defendant’s motion for summary judgment 15 (Docket No. 40) is GRANTED and plaintiff’s motions for summary judgment (Docket Nos. 16 29, 39) are DENIED. The case is dismissed with prejudice. Plaintiff’s motion to file a 17 supplemental response (Docket No. 47) is GRANTED and the court has reviewed the 18 filing. 19 2. The clerk shall close the file. 20 IT IS SO ORDERED. 21 Dated: 1/20/2023 22 23 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 24 United States District Judge

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