Opinion
Civil No. 99-1596-KI
October 30, 2000
Raymond Cook, Snake River Correctional Institution, Ontario, Oregon, Pro Se Plaintiff
Hardy Myers, Attorney General, Jan Peter Londalil, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Defendants
OPINION AND ORDER
Before the court is the motion for summary judgment (#18) by defendants Mitch Flannery, Kedrick Torrey, John Easto, and Wendy Koenig. For the reasons set forth below, I grant in part and deny in part the motion.
FACTS
Plaintiff Raymond Cook is incarcerated at the Snake River Correctional Institution ("SRCI"). Defendants Flannery, Torrey, and Easto are Correctional Officers at SRCI. Koenig is a Registered Nurse at SRCI.
In addition to Cook, Warren E. May is also listed as a plaintiff in this action. A review of the however, reveals that the only a grieved party is Cook. Although May does provide an affidavit in support of Cook's allegations, is or all intents and purposes not a plaintiff in this action.
Cook alleges that, on August 27, 1999, Flannery used excessive force against him, in violation of the Eighth Amendment, during an incident at SRCI. Although Easto and Torrey assisted Flannery in the latter part of the incident, and Koenig gave medical attention to Cook after the incident, the allegations of excessive force by Cook are clearly against Flannery only. As such, I enter summary judgment in favor of Easto, Torrey, and Koenig. In his Complaint, Cook makes the following allegations (copied verbatim):
At Snake River Corr. Inst. on 8-27-99 @ approx. 3:30 p.m. I was being escorted to DSA 40 by Officers Flannery and Officer Easto and Officer Torrey. U p on arrival to DSA 40 I was placed up against the wall while officer East, Torrey made a routine inspection of the cell. While up against the wall this inmate turned his head towards Officer Flannery to ask a question. Officer Flannery immediately struck this inmate by slamming him into the wall for no apparent reason. Officer Flannery took his forearm and slammed it against the back of this inmates neck; pressing roughly against this inmates neck, p inning the side of this inmates head against the wall, while saying "You better face forward." Due to Officer Flannery's rough treatment this inmate was unable to move. This inmate stated, "I am not resisting, why are you using force against me." Officer Flannery stated, "I am not no new officer. Your going to do what I tell you to do." Officer Flannery proceded to use unnessary force against this inmate, by throwing me to the ground and slamming his knees into this inmates lower back. Officer Flanneiy then proceded to grab a handful of this inmates hair and jab his fingers into this inmates eyes. This inmate yelled out; due to the pain being inflicted upon him. Officer Flannery then started pounding this inmates head into the concrete several times while saying, "You'll do what I say, and I say you better keep looking forward." Causing bruising to this inmates head and superfical wounds to this inmates face nose. After Officer Flannery was assisted by Officer Easto Officer Torrey, Officer Flannery then squatted over this inmates face and used his weight to drive his knee into this inmates jaw.
The response back-up arrived and this inmate was escorted to intake holding to await medical treatment. Approx 24 inmate witness were present. Based on their own affidavits, defendants present the following version of the incident at issue:
Defendants also submitted a corroborating affidavit from another SRCI correctional officer, Robert Jones.
On August 27, 1999 at about 3:15 p.m., Officer Flannery was assigned to the Snake River Correctional Institution (SRC1) Disciplinary Segregation Unit (DSU) and was assisting Officer Easto and Officer Torrey in escorting inmates to shower. Officers Flannery, Easto and Torrey were escorting Cook from the shower back to his cell when he became verbally abusive toward staff. He was placed in his cell and told to pack his property to prepare for a move. The three officers then escorted Cook to his new cell. During the move, Officer Flannery told Cook to keep his eyes and face forward and keep his mouth shut, but Cook replied, "Fuck you, go ahead and dump me," and continued to turn his head and direct verbal abusive language toward the escort staff.
When the three officers and Cook arrived at his new cell, Officer Flannery stood on the tier outside the cell with Cook while Officer Easto and Officer Torrey removed another inmate's personal property left in the cell. While waiting for the cell to be emptied, Officer Flannery ordered Cook to stand on the tier facing the wall and not to turn his head, but he continued to turn his head and said, "Fuck you." Officer Torrey returned to the tier to assist Officer Flannery and physically turned and held Cook's face to the wall. Cook continued to resist and Officer Torrey made the decision to return him to the intake area.
When Officer Torrey and Officer Flannery turned Cook away from the wall to escort him to the intake area, he became combative, kicked at them and tried to break free. Officer Torrey and Officer Flannery placed Cook on his knees and then lowered him to the floor to lay on his stomach. Officer Jones came and helped Officer Flannery hold Cook's head while Officer Torrey and Officer Easto held his legs and feet. Officer Flannery then ordered Cook to stop resisting. He said "Okay" and complied with the order. Cook was lifted from the floor to a standing position and Officer Flannery noticed a small amount of blood on his nose. Medical staff was notified. Officer Flannery then placed his left hand on the back of Cook's neck and his right hand on his wrist restraints so he would not injure himself while walking down the stairs to the intake area. Cook was taken to the DSU intake area without further incident.
Officer Flannery did not slam his forearm into Cook, nor did he slam him against the wall. He simply held him steady by placing his hand at the back of his neck and head. Officer Flannery was never on top of Cook and did not slam his knees into his back. He knelt beside Cook, holding his shoulders. He did not grab Cook's hair or jab his fingers in his eyes. Nor did he drive his knee into Cook's jaw.
Cook was examined by Ms. Wendy Koenig, a registered nurse, at about 3:45 p.m. in the DSU intake area. Cook complained of nose pain and difficulty breathing. Ms. Koenig's examination revealed no abnormalities. She cleaned Cook's nasal passages with a Q-tip and gave him ice for his nose. Cook had no other complaints of injury and was not seen again by Health Services staff until October 7, 1999 on unrelated matters.
Defendant's Memorandum, pp. 2-3.
The medical notes made by Koenig on the day of the incident reflect that Cook complained of nose pain and that, other than clotted blood, Cook's nose had no abnormalities and the alignment of the nasal bones was correct. Her notes further reflect that Cook complained of breathing difficulty, but that such difficulty decreased after she cleaned Cook's nostrils with a Q-tip and he was able to breathe through his nose. Her notes state that Cook did not complain of any other injuries. Finally, the notes reflect that Cook did not seek medical attention again until October 7, 1999 for an unrelated condition.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert denied, 120 S.Ct. 375 (1999).
DISCUSSION
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishment Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). In determining whether the use of force was for the purpose of maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may evaluate the need for application of force, the relationship between that need and the amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Id.
Not every malevolent touch by a prison guard gives rise to a federal cause of action. Id. at 9. "The Eighth Amendment's prohibition of cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort `repugnant to the conscience of mankind Id. at 9-10.
Defendants characterize the incident at issue in this case as a "garden-variety takedown by correctional officers of a fractious inmate, resulting in a bloody nose." Defendants' Memorandum, p. 7. They argue that the force used by Officer Flannery, as assisted by the other correctional officers, is properly characterized as de minimis rather than malicious or sadistic as required for an Eighth Amendment violation. In making this argument, they assume that, in light of the undisputed medical evidence that Cook had only a bloody nose, I can reject Cook's allegations that Officer Flannery struck him, slammed his knees in Cook's back, jabbed his fingers in Cook's eyes, drove his knee into Cook's jaw, and pounded Cook's head into the concrete. Realistically, if there is not some way to discount such allegations, I would have to deny summary judgment because such use of force would appear to be excessive for the situation as described by defendants.
Upon a finding that the use of force was de minimis, defendants appear to ask that I find that defendants could reasonably believe that their conduct was lawful, thus entithng them to qualified immunity. See Defendant's Memorandum, p. 1 (raising the defense of qualified immunity).
In the absence of the medical records for Cook, there would be no possible basis for me to grant summary judgment in favor of all the defendants. The other evidence provided by the parties consists solely of self-serving affidavits that present starldy contrasting versions of the facts. Only the medical records shed some objective light on the facts as alleged by the parties.
With that said, I am reluctant to make the inference that defendants seek, i.e., that because Cook's injuries as reported to Koenig or obvious to her were so minor, Cook must be lying when he alleges that Officer Flannery struck him, slammed his knees in Cook's back, jabbed his fingers in Cook's eyes, drove his knee into Cook's jaw, and pounded Cook's head into the concrete. To make such an inference, and then to grant summary judgment using that inference, would be contrary to the message ofHudson that "[t]he absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it" and that a prisoner need not show a significant injury to have an Eighth Amendment claim. Hudson, 503 U.S. at 7, 9. The motion for summary judgment is denied as to Flannery.
CONCLUSION
Defendants' motion for summary judgment (#18) granted in part and denied in part. The case shall proceed against defendant Mitch Flannery only.
IT IS SO ORDERED.
``