Opinion
D071393
11-03-2017
ALFREDO GARCIA et al., Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendant and Respondent.
Terry Singleton and Horacio Barraza for Plaintiff and Appellant. Reily & Jeffery, Janine K. Jeffrey, and Sandra L. Block for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU07449) APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Terry Singleton and Horacio Barraza for Plaintiff and Appellant. Reily & Jeffery, Janine K. Jeffrey, and Sandra L. Block for Defendant and Respondent.
Plaintiff Alfredo Garcia, an inmate then incarcerated at Centinela State Prison in Imperial County, the California Department of Corrections and Rehabilitation (CDCR), was severely injured when he was struck in the head by a direct impact nonlethal "sponge" round fired from a 40-millimeter launcher by an observation tower officer, defendant Correctional Officer Vincent Lerma, during an incident in the prison yard on February 13, 2012. Garcia's civil action for damages alleged claims against Officer Lerma for deprivation of civil rights under color of state law, (42 U.S.C. § 1983, (section 1983 claim)), as well as state law claims for assault and battery and for negligence.
Garcia also sued the State of California and the prison warden, Domingo Uribe. These parties also obtained orders granting summary judgment in their favor, but Garcia does not challenge those rulings in this appeal.
Garcia also pleaded a claim for violation of the Tom Bane Civil Rights Act (Bane Act; Civ. Code, § 52.1), and a claim for punitive damages. The court granted summary judgment in favor of Officer Lerma on these claims. Garcia has offered no argument on appeal suggesting there was error in these rulings, thereby abandoning those claims. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief the matter "constitutes a waiver or abandonment of the issue on appeal"].)
Officer Lerma moved for summary judgment asserting that when the plaintiff is an incarcerated inmate and asserts an excessive force claim against a defendant correctional officer, the applicable standard requires the plaintiff to show both (1) that the defendant employed objectively unreasonable force under the circumstances presented, and (2) that he acted with the sadistic or malicious intent to inflict pain on the plaintiff. Lerma argued there was no evidence that when he fired the sponge round to diffuse the nascent threat to safety in the prison yard posed by Garcia's noncompliant conduct, he acted with any sadistic or malicious intent to inflict pain. He maintained that because both elements must be present before any of Garcia's claims would be cognizable, summary judgment in his favor was proper. Garcia opposed the motion, asserting the force used was objectively excessive under the circumstances and that there was some evidence Lerma acted with the requisite culpable intent. The court sided with Lerma and granted the motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence in Support of Defendant's Summary Judgment Motion
On the morning of February 13, 2012, Garcia was sitting with other Centinela State Prison inmates on the bleachers in a courtyard of the prison. Correctional Officer Lerma who was then stationed in an observation tower overlooking the courtyard. Another correctional officer, Officer Charles Perez, approached the bleachers where Garcia was sitting and began a pat down search of a different inmate (later identified as inmate Brian Pineda). As Officer Perez began the pat down of Pineda, four other correctional officers, Mario Lizarraga, Abel Zamora, Ruben Marron, and Gabriel Garcia, started walking toward the bleachers. Officer Lerma had received a radio transmission asking him to watch the area of the bleachers. Lerma saw one officer approach an inmate (it appeared that officer was going to search the inmate) and also saw the four other officers walking toward the bleachers.
We refer to Officer Gabriel Garcia as "Officer G." to avoid confusion with plaintiff Garcia.
When Garcia saw the approaching officers start to put on gloves, he came down from the bleachers and began running away. Officers Lizarraga, Marron and G. gave chase. Lizarraga was the closest officer, running at least 20 feet behind Garcia; Officer Marron was approximately five to 10 feet behind Lizarraga, while Officer G. trailed even further behind. As they chased Garcia, the officers were yelling at him to stop and get down. Officer Lerma saw Garcia take off running, and saw at least one of the officers begin to chase after him.
When Garcia began running, someone called the operations center for a "put down" order to be issued. Officer Lerma received a radio call instructing him to put the "yard down," and he immediately activated the yard alarm. He also turned on the public address (PA) system and began giving verbal commands instructing all inmates in the yard to "get down." Although the other inmates responded to the alarm and commands and began to get down, Garcia ignored the directions and continued running.
When the alarm sounds, it signifies that all inmates are to get down wherever they are standing.
From his vantage point above the yard, Officer Lerma saw Garcia reach toward the right front side of his waistband as he ran. When Garcia removed his hands from his waistband, he kept his hand clenched as he pumped his arms while running. Because of his distance and speed, Lerma could not see whether Garcia had an object in his clenched fist.
Garcia asserts on appeal that the pursuing officers did not observe Garcia reach into his waistband or see anything in his hands. The portion of the record cited by Garcia in support of this assertion, however, merely states that while Garcia was still in the bleachers the officers did not see him reach into his waistband or have anything in his hands. Officer Lizarraga (the officer closest to Garcia during the chase) testified during his deposition that Garcia "was going towards his pockets or waistline," but Lizarraga was unsure "because he was in front of me." Other pursuing officers, at a greater distance than Lizarraga, indicated they either could not recall seeing Garcia reach into his waistband or did not see him reach to his waist during the chase.
Garcia was running on a path that was taking him toward the exercise or "work out" area. Officer Lerma explained that this exercise area is divided by an invisible boundary where inmates separate themselves by racial groups, with African-American inmates working out on one side and Hispanic inmates on the other side. There are often increased tensions between the two groups when they are in close proximity to each other. Lerma estimated there were between 80 and 100 inmates congregated in the exercise area, with a total of between 300 and 350 inmates in the courtyard as a whole. Garcia's trajectory was toward a group of African-American inmates in the workout area, beyond which a different group of Hispanic inmates was gathered.
Garcia argued this was a disputed fact because his trajectory was also on a line towards the "misters" (bathrooms) in the yard and that, in the past, some inmates have disobeyed "put down" orders and ran to the misters to dispose of drugs or contraband. But he did not dispute that his path was toward the gathered groups in the exercise area. Indeed, Officer Zamora's undisputed deposition testimony was that after Garcia was struck by the projectile, he fell "in the middle of the workout pile."
As he watched Garcia run toward the workout area, Officer Lerma concluded Garcia's conduct posed a serious threat: Garcia had failed to comply with the yard alarm and verbal commands to get down; officers were continuing to chase him into groups of antagonistic inmates, which could result in a riot and/or an attack on the chasing officers; and Lerma did not know whether Garcia (who Lerma saw reach into his waistband and then clench his fists) might have a weapon. Based on his assessment of the totality of these circumstances and with the sole intent of stopping Garcia's progress toward the gathered inmates, Lerma decided to fire a "direct impact" or "sponge" round, which he had preloaded into the 40-millimeter launcher. Lerma aimed to hit Garcia in the thigh. He was approximately 80 feet away when he fired the launcher and he aimed two to three feet in front of Garcia to account for the "lag time" involved when firing sponge rounds. Although Lerma testified he was aiming to hit Garcia below the waist, the sponge round struck him in the head. Garcia immediately fell to the ground and was rendered unconscious.
The fear that Garcia's conduct could trigger violence if he reached the gathered inmates was shared by Officer Lizarraga, the pursuing officer closest to Garcia. Lizarraga testified that he feared being attacked had he run through the gathered inmates in pursuit of Garcia.
At the time Officer Lerma discharged the 40-millimeter launcher, Lizarraga was approximately 15 to 20 feet behind Garcia and the other pursuing officers were further back.
The 40-millimeter launcher is designed to stop a threat using less than lethal force. (See Cal. Code Regs., tit. 15, § 3268, subd. (c)(4) [defining "less lethal weapons" to mean "any weapon that it is not likely to cause death" and stating a "40[-millimeter] launcher is a less lethal weapon"].) It may be loaded with either a direct impact round or a wooden block round. The direct impact round, which is designed to be fired directly at a target when the target is between 10 and 105 feet away, is made of foam. It travels more slowly than a lethal round and is an inexact munition, meaning that its accuracy is subject to a number of variables, including wind, rain, and distance from the target. The other munition, the wooden block rounds, consist of three separate wooden blocks and have a range up to 60 feet. When the blocks hit the ground they disperse in different directions. This type of round is appropriate when inmates are in range and are fighting, because it is designed to target a group as opposed to a single individual.
At the start of his shift, Officer Lerma had preloaded the 40-millimeter launcher with a sponge round. Lerma also had two other weapons available for his use: a .38-caliber sidearm (to be used only for personal defense) and a Mini-14 rifle for use when deadly force was appropriate. After the incident, no weapon was found on Garcia. However, two bindles of heroin were found near where Garcia fell.
Officer Lerma testified he believed an officer had discretion to decide which round to preload into the 40-millimeter launcher at the beginning of his shift. Garcia contended that postorders required the launcher be preloaded with the wooden block round, but the postorder purportedly mandating this preloading was dated March 2012 (one month after the incident). There was no evidence the standing postorders on the date of the incident included a similar mandate.
There was no evidence Officer Lerma had any personal animus towards Garcia. Rather, Lerma stated there were no prior interactions between the two men. Garcia also cites no evidence suggesting Lerma had any history of using excessive force on inmates. It was also undisputed that a postshooting investigation was conducted by the Deadly Force Investigation Team to investigate whether the force employed during the incident was appropriate and in compliance with the CDCR's use of force policies. The Deadly Force Review Board (DFRB), established to examine all aspects of the incident, concluded Lerma was in compliance with use of force policy when he discharged a single 40-millimeter direct impact round in an effort to control Garcia, who appeared to pose a threat to security. As a result, the DFRB did not make any corrective findings. B. Plaintiff's Additional Evidence
Officer Lerma had discharged the 40-millimeter launcher on multiple occasions over the course of his 25-year career. He estimated he used wooden block rounds in approximately eight incidents when there was a "riot" involving "fighting everywhere," and he had used "direct impact" rounds on an approximate average of twice yearly, but the injuries from those rounds was limited to bruising, swelling and redness.
Garcia noted he did not have a weapon and never turned to attack or threaten any officer. He also claimed the officers knew inmates would run to the misters to dispose of drugs or contraband. According to Garcia, it was or should have been "clear to the officers" that Garcia was running to the misters, and hence his flight created no threat. Garcia also asserted that all of the inmates (other than Garcia) had gotten down so that none of the pursuing officers perceived Garcia's conduct created any danger to them.
The evidence upon which Garcia relied for these assertions, however, was not from Officer Lerma. Instead, Garcia cited Officer Virginia Cortez's deposition testimony that when inmates have contraband they want to flush "the majority of the time, they like to run to the misters," but Cortez also indicated there was nothing else that made her think this was Garcia's goal and purpose. Garcia also cited Officer Lizarraga's deposition testimony that he thought Garcia was running either to pass contraband to his friends or to the toilet, but discounts Lizarraga's testimony that Garcia was running towards an area where there were 100 to 150 inmates gathered in racially segregated groups.
Garcia cited Officer Lizarraga's testimony that Lizarraga did not feel threatened as he ran by inmates who had gotten down, but ignored Lizarraga's other testimony that he did fear for his safety as he pursued Garcia toward the gathered groups of inmates because Lizarraga believed he would have been jumped had the pursuit taken him in among one of these groups.
Garcia appeared to claim that Officer Lerma did not issue a verbal warning before firing the launcher, in violation of CDCR's use of force policy. In addition, Garcia cited evidence of "another instance" where Officer G. gave chase to an inmate through an area where African-American and Hispanic inmates were present. During this incident, Officer G. was not attacked by other inmates nor did the observation tower fire on the fleeing inmate. Instead, Officer G. was able to corner the inmate in the urinals and subdue him with pepper spray.
California Code of Regulations, title 15, section 3268, subdivision (h) of the CDCR use of force policy states a "verbal warning should be given before force is used unless the circumstances requiring the immediate use of force preclude such verbal warning." Although Officer Lerma never used the PA system to warn Garcia to stop or be fired upon, Garcia concedes Lerma did use the PA system to issue multiple warnings for everyone to "get down."
This other incident appears to be of little assistance for several reasons. First, Officer G.'s description of that event contains no details of the incident, such as whether the inmate was out of range of the 40-millimeter launcher, whether the juxtaposition of the inmate and pursuing officers prevented a clear shot, how many unrestrained inmates were milling about the yard, whether the fleeing inmate's path took him toward a large gathering of unrestrained (and potentially antagonistic) inmates or, instead, whether the inmate had already been adjacent to the confined space where he was cornered, etcetera. Second, as Garcia himself admitted below, "every incident stands on its own." We treat this statement as his concession that other incidents are generally of little if any value in assessing Officer Lerma's state of mind as to the present incident.
Garcia also relied on evidence suggesting that Officer Lerma delayed in giving a public safety statement (PSS) to Correctional Lieutenant David May. This purported delay, asserted Garcia, raised a triable issue of fact on the credibility of Lerma's claim that he fired the launcher in a good faith effort to maintain or restore discipline rather than with a malicious intent. Garcia argued that such delay could provide a jury with grounds to believe that Lerma used the delay to "concoct[] the story" about why he fired on Garcia.
The evidence cited by Garcia in support of the proposition that Lerma improperly "delayed" giving the PSS presents at best a murky picture. A PSS is a "brief statement" by the individual who fired the round stating how many rounds were fired, where the rounds traveled, and who the rounds struck. However, Garcia did not submit the written policy in effect at the time describing how promptly a PSS must be given by the involved officer, or even whether a PSS is the only report that would satisfy institutional guidelines. Instead, Garcia's evidence showed only that there was disagreement between the investigators and Lerma's supervisors regarding whether and when it was necessary for him to give a PSS.
The only support for Garcia's claim of improper delay was provided by a portion of the Deadly Force Investigation Report (DFIR) in which an investigator stated that, after arriving at the prison, he asked Lieutenant May why a PSS had not yet been obtained. May indicated that Officer Lerma wanted to wait until his union representative arrived. The investigator then told May of the "parameters" within which a PSS must be submitted and the "manner it is to be obtained after an incident," and to go back and order Lerma to give the PSS. Lerma indicated to May that he still wanted to await the arrival of his representative, but the investigator insisted Lerma had "no choice." By then, a staff legal counsel for the union had arrived and Lerma thereafter gave the PSS to investigators.
However, Lieutenant May, (who was the yard lieutenant on the day of the shooting), testified he and the associate warden had a discussion about the PSS and "that it was not necessary due to the fact [Lerma] was still on the grounds [and] was going to provide a report at the time." (Italics added.) May also testified he saw a "PowerPoint from their training to show . . . we only needed [a PSS] in the event the officer left the grounds. That was the whole issue behind this . . . . Lerma was willing to stay and write a report. He wasn't leaving the grounds. So that was our whole discussion behind this PSS." (Italics added.) May stated that the timing for a PSS was later "changed . . . [b]ut nobody ever said it was right, wrong or indifferent that night."
In the DFIR, the investigator reported that in his interview with Officer Lerma several hours after the shooting he asked about providing a PSS. Lerma indicated it was his understanding that, after firing a weapon, an officer "could provide a PSS if the individual was too upset to write a report." He believed the purpose of the PSS "was to relay information as to what actions the individual shooter took in discharging the weapon." However, Lerma did not know "how soon after discharging a weapon was he supposed to provide a PSS" and he "believe[d] he was only providing a PSS if he was too upset to write a report." Lerma was shown section 51020.17 of the CDCR Operations Manual on "Uses of ForceReporting Requirements," which stated that "[a]ny employee who uses force . . . shall report it to a supervisor as soon as practical and follow up with appropriate documentation prior to being relieved from duty." Lerma indicated he complied with that requirement because within three minutes after discharging the 40millimeter launcher he provided Lieutenant May with information notifying him of the number of times he fired the weapon, the circumstances of why he fired, and that he had struck an inmate. Lerma stated that May asked him (several hours after the incident) if he was going to give a PSS, but did not order him to do so, and that Lerma replied his "representative was on his way and he would rather wait." The investigator then showed Lerma the PSS guidelines (apparently indicating an officer is not entitled to representation when giving a PSS), but Lerma indicated he believed he followed the instructions given to him by May.
DISCUSSION
A. Standard of Review
On appeal from the granting of summary judgment for the defendant, the appellate court reviews the record de novo. We view the evidence in the light most favorable to the plaintiff, liberally construing the evidence in opposition to the motion while strictly construing defendant's evidence and drawing all reasonable inferences against the moving defendant. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; Frazier v. Velkura (2001) 91 Cal.App.4th 942, 945.) In practical effect, this court assumes the role of a trial court and applies the same rules and standards that govern a trial court's determination of a motion for summary judgment. (Leane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.)
We thus review the record de novo to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We first examine the pleadings to ascertain the elements of the plaintiff's claim and then evaluate the moving party's papers to determine whether the defendant has established facts justifying judgment in his or her favor. If the defendant meets this burden, we then review the plaintiff's opposition to decide whether the additional evidence demonstrates the existence of a triable issue of material fact. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858-859.) A decision to grant a motion for summary judgment will be affirmed if the defendant has shown "the plaintiff cannot establish at least one element of the cause of action." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)
Our review of trial court's rulings on evidentiary objections applies the more deferential abuse of discretion standard. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) The plaintiff has the burden to establish such an abuse, which the reviewing court will find only if the trial court's order exceeds the bounds of reason. (Ibid.) In cases where a trial court has discretion to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court, and an appellate court will only interfere with the trial court's ruling if the objecting party can show "no judge could reasonably have made the order that he did." (Ibid.) B. Eighth Amendment Framework
In addition to Garcia's section 1983 claim, he also alleged state law claims for assault and battery and for negligence. As Officer Lerma contends and Garcia concedes, however, the Eighth Amendment's analytical framework governing Garcia's section 1983 claim applies with equal force to his state law claim for assault and battery. The courts appear to be in accord with this concession. (See, e.g., Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273-1274 [applying section 1983 claim standards to state law battery claim].) Similarly, as to Garcia's negligence claim, he conceded below that his negligence claim "stand[s] or fall[s] on . . . [¶] [¶] . . . whether there was excessive force under the Eighth Amendment," which we treat as binding in this action. Accordingly, our evaluation of the Eighth Amendment excessive force claim appears to control all of Garcia's causes of action.
Garcia's claim is that Officer Lerma employed excessive force during the 2012 incident at the prison. Because at that time Garcia was a prisoner serving a sentence for his criminal conviction, his excessive force claim is governed by Eighth Amendment principles. (See Whitley v. Albers (1986) 475 U.S. 312, 327 (Whitley) ["[T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases . . . where the deliberate use of force is challenged as excessive and unjustified."].) "The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials." (Crawford v. Cuomo (2d Cir. 2015) 796 F.3d 252, 256 (Crawford).) "To state an Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective." (Ibid.) The objective element requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." (Ibid.) The subjective element requires a showing "that the defendant acted with a subjectively 'sufficiently culpable state of mind.' " (Ibid., quoting Hudson v. McMillian (1992) 503 U.S. 1, 8 (Hudson).)
The objective element is " 'context specific, turning upon "contemporary standards of decency." ' " (Hogan v. Fischer (2d Cir. 2013) 738 F.3d 509, 515.) The Supreme Court has explained that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury." (Hudson, supra, 503 U.S. at p. 4.) The "core judicial inquiry" is "not whether a certain quantum of injury was sustained, but rather 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.' " (Wilkins v. Gaddy (2010) 559 U.S. 34, 37 (Wilkins).) Nonetheless, "the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation," (Hudson, at p. 7 [internal quotation marks omitted]), and "may also provide some indication of the amount of force applied." (Wilkins, at p. 37.) However, because "[i]njury and force ... are only imperfectly correlated, and it is the latter that ultimately counts," (id., at p. 38), the degree of Garcia's injury is relevant but not determinative. (Alejandrez v. Kircher (N.D.Cal. Feb. 10, 2014, No. 11-cv-02381-JST (PR)) 2014 U.S. Dist. LEXIS 17563, *11 [unpublished] [extreme injury "is not dispositive and does not overcome the fact that all the other factors weigh heavily in favor of a finding that the force used was necessary under the circumstances"].)
The subjective element is not satisfied merely because the defendant intentionally applied a degree of force that would be deemed objectively " 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions," (Crawford, supra, 796 F.3d at p. 256), but instead examines whether the defendant " 'act[ed] with a sufficiently culpable state of mind.' " (Hudson, supra, 503 U.S. at p. 8.) It asks "the core judicial inquiry . . . whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." (Id. at p. 7.) "[T]he subjective component (Did the officials act with a sufficiently culpable state of mind?) . . . [¶] . . . 'must involve more than ordinary lack of due care. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause . . . [¶] . . . [and] mandate[s] inquiry into the prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment." (Wilson v. Seiter (1991) 501 U.S. 291, 298-299, quoting Whitley, supra, 475 U.S. at p. 319, italics added.) Thus, the "malicious and sadistic" question is a core inquiry for an excessive force claim.
Whitley cautioned that evaluating an Eighth Amendment excessive force claim depends on the context in which it arose. "When the 'ever-present potential for violent confrontation and conflagration,' [citation], ripens into actual unrest and conflict, the admonition that 'a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators,' [citation], carries special weight. 'Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.' [Citation.] That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates . . . . It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, in ruling on a motion for a directed verdict in a case such as this, courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury." (Whitley, supra, 475 U.S. at pp. 321-322, italics added.)
Whitley also described the kinds of considerations that may be examined to distinguish between force " 'applied in a good faith effort to maintain or restore discipline' " from force applied " 'maliciously and sadistically for the very purpose of causing harm.' " (Whitley, supra, 475 U.S. at pp. 320-321.) The court may consider " 'such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted' . . . [and] [f]rom such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur. [Citations.] But equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response." (Id. at p. 321; accord, Hudson, supra, 503 U.S. at p. 7.) C. Summary Judgment Was Proper Under Governing Eighth Amendment Standards
Because the trial court concluded Garcia had not demonstrated an Eighth Amendment excessive force claim, it did not discuss Officer Lerma's alternative claim that he was entitled to summary judgment under qualified immunity principles. On appeal, Garcia contends it was error for the court not to reach this issue and that instead it should have found triable issues on whether Lerma was entitled to qualified immunity. In contrast, Lerma suggests he was entitled to qualified immunity. Although our conclusion renders Lerma's qualified immunity argument moot, we agree with the apparent approach of the Eleventh Circuit Court of Appeal that, at least with regard to Eighth Amendment claims based on alleged excessive force, (see fn. 16, ante), the subjective intent requirement necessary to showing an Eighth Amendment excessive force claim appears mutually inconsistent with the predicate for invoking qualified immunity. (See, e.g., Johnson v. Breeden (11th Cir. 2002) 280 F.3d 1308, 1321 ["to have a valid claim on the merits of excessive force . . . the excessive force must have been sadistically and maliciously applied for the very purpose of causing harm . . . where this type of constitutional violation is established there is no room for qualified immunity"].)
Garcia did not dispute that Officer Lerma was manning the observation tower and was responsible for providing "weapon coverage" when he received a call to watch the south yard bleachers. Lerma saw an officer approaching the bleachers as if to conduct a search, and saw four other officers walking toward the bleachers. He then observed Garcia running away from the bleachers while several of the officers gave chase. Lerma, responding to a radio call to put the "yard down," immediately activated the yard alarm (which inmates know requires them to get down in place). He also turned on the PA system and ordered the inmates to "get down," but Garcia ignored the commands while he continued running. Officer Lizarraga (in the lead) and other officers chased after Garcia while ordering him to get down. Lerma, although having at his disposal a lethal weapon, chose a less than lethal weapon to fire at Garcia (who was between 80 and 90 feet away) using the 40-millimeter launcher that had been preloaded with a sponge round.
Officer Lerma's showing on "the core judicial inquiry"—whether that force was applied "in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm" (Hudson, supra, 503 U.S. at p. 7)—claimed he fired because he believed, based on what he observed, that a serious threat existed. Lerma saw the following: (1) Garcia ignored multiple orders to "get down"; (2) Garcia's escape path headed in the direction of an exercise area occupied by 80 to 100 and African-American and Hispanic inmates that was prone to tensions between the groups; (3) there were a total of between 300 and 350 inmates in the yard who had complied with the order to "get down" but were otherwise unrestrained; and (4) Garcia reached into his waistband area and came out with a closed fist, such that Lerma could not determine whether Garcia was clutching an object as he headed toward the exercise area. Lerma did not know how the African-American inmates would react to Garcia's actions or whether the Hispanic inmates would attack the pursuing officers if Garcia reached their group. Lerma maintained that his sole intent when he fired was to stop Garcia's progress so that he could be restrained by the pursuing officers. To that end he used his less than lethal 40 millimeter launcher loaded with a sponge round, then targeted Garcia's thigh and aimed two or three feet in front of Garcia to account for the fact that Garcia was 80 feet away and moving.
Garcia also presented no evidence to dispute Officer Lerma's showing that a sponge round is designed to stop a threat with minimal injury, but is an inexact munition because it travels more slowly than a lethal round and its accuracy can be impacted by environmental variables such as wind, distance to the target, and a target's rapid directional changes. Lerma also testified he used similar rounds on multiple prior occasions and that those rounds had produced injuries that were limited to bruising, swelling and redness.
Garcia does not dispute that this showing would justify summary judgment on his Eighth Amendment claims for excessive force if his counter-showing was inadequate to raise a triable issue of material fact as to whether Officer Lerma fired with the malicious and sadistic intention of causing harm to Garcia. (Hudson, supra, 503 U.S. at p. 7; see Whitley, supra, 475 U.S. at p. 322 ["Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury."].) But he argues his counter-showing did raise triable issues of fact from which a jury could conclude that Lerma acted with a malicious and sadistic intent.
Citing Graham v. Conner (1989) 490 U.S. 386, Garcia appears to assert on appeal that (apart from whether his counter-showing below was adequate to raise a triable issue of fact on whether Officer Lerma acted with the requisite malicious and sadistic intent) he produced numerous facts showing the use of force was not objectively reasonable under the totality of the circumstances. Specifically, he asserts reversal is required because the trial court failed to assess the "other correctional officer's observations to determine whether under the totality of the circumstances, the security measure undertaken . . . was even necessary . . . [given] the threat 'reasonably perceived' by all of the officers in the yard and not just [Garcia]." However, this argument appears to conflate the Fourth Amendment's "objective reasonableness" test, which Graham applied to analyzing claims of excessive force in the prearrest context (id. at p. 394) with the applicable and different Eighth Amendment standard which is triggered upon incarceration. (See id. at pp. 398-399.) It is the latter standard that is applicable here, rendering Garcia's "totality of the circumstances" argument unpersuasive.
We conclude that Garcia's evidence, which we credit at face value, was inadequate to raise a triable issue of fact. On the "core judicial inquiry," (Hudson, supra, 503 U.S. at p. 7), of whether Officer Lerma fired with the malicious and sadistic intention of causing harm rather than in a good faith effort to maintain or restore discipline, courts examine (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of the injury inflicted upon the prisoner; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response. (Cockrell v. Sparks (11th Cir. 2007) 510 F.3d 1307, 1311 (Cockrell).) Moreover, our analysis of "[d]ecisions made at the scene of a disturbance," (Bennett v. Parker (11th Cir. 1990) 898 F.2d 1530, 1533), must be "informed by the wide ranging deference which is to be accorded prison administrators acting to preserve discipline and institutional security." (Brown v. Smith (11th Cir. 1987) 813 F.2d 1187, 1188.)
It is indisputable, particularly in light of the deference accorded to prison officials, that it was at least appropriate to apply some type of force to obtain Garcia's compliance when, in disregard of audible commands from multiple sources to get down, he continued his efforts to evade the pursuing officers by fleeing toward the antagonistic groups gathered in the exercise area. Whitley is clear that "[w]hen the 'ever-present potential for violent confrontation and conflagration' [citation] ripens into actual unrest and conflict, the admonition that 'a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators' [citation] carries special weight." (Whitley, supra, 475 U.S. at p. 321.) Garcia's contrary argument, to the extent he asserts there were factual disputes over whether there was a need for any coercive action by Officer Lerma in response to Garcia's conduct, is inadequate to raise a triable issue of fact on his excessive force claim.
Garcia did not dispute either that there were tensions among the antagonistic inmates gathered in the exercise area or that his path of flight took him in the direction of that area. He instead asserts (citing the testimony of other officers) that a jury could conclude no force was necessary because it is "common knowledge" that inmates who take flight have (as their ultimate destination) the misters for the purpose of disposing of drugs, which posed no threat to the pursuing officers requiring force. However, the testimony cited by Garcia was from Officer G. (who had only been involved in one or two chases in his career), Correctional Officer Virginia Cortez (who testified only that she thought Garcia could have been headed toward the misters because it can provide a place to dispose of contraband, and Officer Lizarraga (who testified he believed Garcia was running on a course that would enable Garcia "to either pass drugs to one of his friends or flush it down the toilet"). Thus, the officers cited by Garcia for the alleged "common knowledge" of Garcia's benign destination and purpose included at least one (Officer Lizarraga) who indicated Garcia could have been headed to "his friends" among the gathered inmates, and it was Lizarraga who also expressed a concern "for [his] safety" if Garcia had "gotten into that group of Hispanic men," which was one of the concerns that led Officer Lerma to employ force to stop Garcia. More importantly, the subjective intent element must be examined based on "the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them." (Whitley, supra, 475 U.S. at p. 321.) Hence, the perceptions or beliefs of other officers with different spatial and experiential perspectives are largely irrelevant to evaluating Lerma's subjective intentions.
Garcia also seems to suggest there was a triable issue of fact whether there was any need to apply any force because the inmates (other than Garcia) had gotten down and hence there was no incipient threat of violence. However, these inmates were not restrained, and could easily have joined Garcia in defying the orders. As the Eleventh Circuit Court of Appeal explained in affirming a summary judgment, where the inmate himself has created a disturbance," '[p]rison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.' " (Cockrell, supra, 510 F.3d at p. 1311, quoting Bennett, supra, 898 F.2d at p. 1533.)
Garcia alternatively asserts there was a triable issue of fact whether there was any need to apply force because, if the officers had felt endangered by continuing into the area where the AfricanAmerican and Hispanics inmates had gathered, all they had to do was stop their chase because "there was no consequence to the officers for failing to chase inmates who ran from them or failed to stop on a 'put down' order" and "officers in similar situations have opted not to chase inmates because they know that the inmates are not going anywhere and the yard is secure." The fact that an officer pursuing Garcia would have faced no disciplinary action if he had stopped the chase is irrelevant because Garcia cites no authority suggesting force may be applied only when essential to preserve the personal safety of officers but may not be applied to preserve institutional security. Moreover, evidence that officers on other occasions may have abandoned a chase is irrelevant to whether, on this occasion, the only alternative available to Officer Lerma was to direct the pursuing officers to cease chasing Garcia. In short, Garcia's effort to assert triable issues of fact based on the purported lack of a need to apply force ignores the Supreme Court's admonition that we must accord substantial deference to the judgments of prison officials made in the adoption and execution of policies and measures designed to maintain discipline and preserve institutional security. (Whitley, supra, 475 U.S. at pp. 321322.)
Garcia's showing on the second factor—the relationship between the perceived need to employ some degree of force and the amount of force employed to meet that need—was inadequate for the same reasons. Garcia merely reasserts that because, in his view, there was no need to use any force, the amount of force used was so disproportionate to the exigencies observed by Officer Lerma that a jury could infer Lerma deployed the force maliciously and sadistically rather than in a good faith effort to prevent nascent threats to institutional security. Because we have (for the reasons stated above) rejected Garcia's predicate, this factor does not provide any basis to conclude that Lerma acted to maliciously and sadistically inflict harm on Garcia.
Garcia contends that Officer Lerma's "decision to use the direct impact projectile instead of the indirect wooden baton round" provides support for his claim that the force deployed was excessive in relation to the perceived need. But even if the 40-millimeter launcher had been preloaded with the alternative wooden block munition, Lerma showed that Garcia was out of the effective range of the wooden blocks. Moreover, firing the wooden blocks in Garcia's direction could have injured others in the yard who were not involved in the incident. As a result, Lerma would have had to switch to and then use only the appropriate munition (the direct impact munition) that was responsive to the exigent circumstances observed by Lerma. Because Garcia did not provide any evidence disputing he was out of range, or that the wooden blocks were not designed to obtain compliance by a single inmate, the fact that Lerma used the sponge round supports rather than undermines the close relationship between the perceived need to employ some degree of force and the type of force employed to meet that need.
Certainly, the extent of the injury—the third factor in the matrix to determine whether the circumstances warrant an inference of sadistic and malicious intent—was substantial. However, the United States Supreme Court has recognized that "[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts." (Wilkins, supra, 559 U.S. at p. 38, italics added.) While this sponge round struck Garcia in the head, and officers are not allowed to target an inmate's head with sponge rounds, Garcia did not dispute that such a round is inexact (because it travels more slowly than a lethal round) and its accuracy can be impacted by environmental variables such as wind, distance to the target, and a target's rapid directional changes. Garcia also presented no admissible expert evidence to suggest that, in light of Garcia's speed, distance from Officer Lerma and the environmental variables, it was more likely than not that Lerma was aiming at Garcia's head rather than his professed target, Garcia's lower extremity. Finally, Garcia did not dispute that Lerma's prior use of direct impact rounds had produced injuries that were limited to bruising, swelling and redness. Under these circumstances, we believe the observations of the court in Cockrell are apt: "Although in this case the extent of the injury was relatively extensive, this factor alone is not dispositive. There is no way that [the officer] could have foreseen that [the force employed] would result in as much injury as Cockrell unfortunately suffered. That the severity of the injury could not have been reasonably anticipated makes it less likely that [the officer] acted 'maliciously and sadistically for the very purpose of causing harm.' " (Cockrell, supra, 510 F.3d at pp. 1311-1312, quoting Whitley, supra, 475 U.S. at pp. 320-321.) Similarly, although Garcia's injury was significant, there is no evidence Lerma knew or expected that use of the sponge round would result in as much damage as Garcia unfortunately suffered. Indeed, the fact that "the severity of the injury could not have been reasonably anticipated makes it less likely that [Lerma] acted 'maliciously and sadistically for the very purpose of causing harm.' " (Cockrell, at pp. 1311-1312.)
Garcia did present a declaration from a purported expert, but the court sustained Officer Lerma objections to that declaration. As we conclude below (see Discussion, section D, infra) the court did not abuse its discretion in making that ruling.
The evidence supplied by Garcia on the fourth factor—the extent of the threat posed by his conduct to the safety of staff and inmates as reasonably perceived by Officer Lerma on the basis of the facts known to Lerma—also provides no evidence that would "support a reliable inference of wantonness in the infliction of pain . . . [to permit] the case . . . [to] go to the jury." (Whitley, supra, 475 U.S. at pp. 321-322.) Garcia merely reasserts that there was no danger of rioting or intervention by other inmates because some of the pursuing officers believed Garcia was headed to dispose of drugs. As previously discussed, this belief, even if it were universally shared by all the pursuing officers, (but see fn. 20, ante), was not shared by Lerma who had a distinct "birds eye" view not possessed by the other officers and thus could see things, (such as Garcia's apparently reaching into his waistband), that others were not in a position to see. Because it is Lerma's intent that is relevant, and the "extent of the threat . . . as reasonably perceived by the responsible officials " is measured by "the facts known to them," (id. at p. 321), the perceptions or beliefs of other officers with differing perspectives are largely irrelevant to determining whether Lerma acted maliciously.
The final factor—whether there were any efforts made to temper the severity of a forceful response—also supports Officer Lerma's contention that he acted in a good faith effort to preserve order and safety rather than maliciously and sadistically to inflict pain on Garcia. It is undisputed that Lerma activated the yard alarm, which gave the first warning to Garcia and other inmates to "get down." It is also undisputed that Lerma then employed the PA system to verbally instruct Garcia and other inmates to "get down." Additionally, Lerma used a sponge round (rather than the lethal weapon at his disposal) which, had it struck a lower extremity, would have resulted in mere bruising and swelling.
Garcia supports his argument by asserting that Officer Lerma violated institutional policy in failing to issue a specific warning to Garcia that he was about to deploy the sponge round. We have already explained that nothing in the prison policy requires a detailed warning (or a personalized demand) when an inmate obdurately ignores two forms of warnings (in addition to the specific warnings issued to Garcia by the pursuing officers) and continues to pose a potential threat. (See fn. 13, ante.)
Garcia argues that even though Officer Lerma claimed he fired on Garcia for the sole purpose of stopping his progress toward the gathered inmates and the potential threat such conduct created, a triable issue of fact was raised because the jury could have disbelieved Lerma and (upon discrediting his denial of any malice) could then draw the opposite reasonable conclusion, that Lerma acted with a malicious and sadistic intention. We cannot conclude Garcia's showing would permit a jury reasonably to draw that inference. Garcia submitted no evidence that Lerma bore any personal animus towards Garcia—it was undisputed that Lerma had no personal interactions with Garcia before the incident—or that Lerma even knew the identity of the person he saw disobeying commands and raising a potential threat to safety. (See James v. Phillips (S.D.N.Y. April 9, 2008) 2008 U.S. Dist. LEXIS 30615, *11 ["With respect to a wanton state of mind, there was concededly no interaction between [the officer] and plaintiff prior to the date of the incident. This is not a case where the officer and the inmate had a history of unpleasant interactions."].) Nor is there any evidence that Lerma had a history of using excessive force on inmates from which a jury might conclude that his articulated reason was a smokescreen to hide his proclivity for maliciously and sadistically inflicting pain on inmates. Finally, while Garcia claims a jury could conclude that Lerma should be disbelieved because he delayed his PSS report to give himself time to generate a false narrative, we have previously explained that it is unclear any PSS report was even required under institutional guidelines. Nor is there any evidence that the account he gave promptly to Lieutenant May within minutes of the shooting in any way deviated from any subsequent report concerning the facts and circumstances that led him to believe it was necessary and appropriate to deploy force.
Garcia cites Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1840 (Donchin), for the proposition that because a trier of fact may disbelieve a witness's exculpatory statement as to his state of mind, (here, that Officer Lerma acted with the intent to preserve order and safety), such disbelief will also provide support for the opposite inference (here, that Lerma acted with the sadistic and malicious intent to inflict pain). That is not the law, (see, e.g. Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1228-1230 [disbelief of testimony does not constitute affirmative evidence of the contrary proposition]), and Garcia's claim fundamentally misreads Donchin. In that case, the defendant-landlord's declaration stated he was unaware of the vicious nature of his tenant's dogs. In opposition, the injured party showed the landlord initially denied any knowledge the tenant had dogs but later admitted that denial was false. (Donchin, at p. 1835.) The Donchin court reversed the trial court's order granting summary judgment in favor of the landlord, explaining a jury reasonably could infer from the landlord's earlier false exculpatory statement, (denying knowledge of the dogs' existence), that his later statement (denying knowledge of their violent propensities) was likewise false. (Id. at pp. 1840-1843.) Donchin also noted "[t]he inference [the landlord's] denial of knowledge should be disbelieved is bolstered further by some of the affirmative evidence [plaintiff] offered suggesting the landlord indeed possessed, or must have possessed, knowledge about the rottweilers' propensities," (id. at p. 1843), including declarations from numerous people testifying the dogs reacted viciously when they approached the property, (ibid.), and the evidence that the landlord regularly visited the property. (Id. at p. 1836.) Based on these twin showings in opposition to the summary judgment motion—the reasonable basis for disbelieving the landlord's testimony and affirmative evidence he must have known the dogs were vicious—Donchin concluded the evidence would support a jury verdict in favor of the plaintiff and therefore summary judgment was improper. (Id. at p. 1845.) Nothing in Donchin's holding or analysis supports Garcia's argument that the jury here was entitled to infer Lerma acted with sadistic or malicious intent simply because it might have disbelieved Lerma's testimony. Moreover, Lerma (unlike the landlord in Donchin) never recanted his testimony or made a demonstrably false exculpatory statement that could justify a secondary inference that his stated reason for firing on Garcia was pretextual. Absent independent evidence of such a falsehood, any inference that Lerma gave pretextual reasons for firing on Garcia was unduly speculative.
We conclude that, even assuming Garcia satisfied the objective element of an Eighth Amendment excessive force claim, he has failed to provide evidence of a genuine dispute as to whether Officer Lerma acted with a subjectively culpable state of mind. Accordingly, it was proper to enter summary judgment on Garcia's Eighth Amendment excessive force claim, as well as the dependent subsidiary state law claims. D. Garcia has Not Demonstrated the Evidentiary Rulings Were an Abuse of Discretion
Garcia complains the court erroneously denied his request for judicial notice. Garcia requested judicial notice of (1) various newspaper articles reporting on a 2005 incident in which an inmate, Daniel Provencio, at another California prison facility died after being struck by a direct impact round, and (2) the federal court complaint filed by that inmate's son alleging (among other things) a claim for excessive force. The trial court denied Garcia's request on the grounds that the submitted materials did not "meet the minimum requirements of Evidence Code sections 452, subdivisions (d) and (h) or 453." On appeal Garcia asserts error only insofar as the court declined to take judicial notice of the federal court complaint.
Evidence Code section 452, subdivision (d), provides that a court may take judicial notice of the "records of . . . any court of record of the United States." Garcia asserts that "[c]learly, the complaint filed by the plaintiffs in the Provencio case was subject to Judicial Notice and therefore said request should have been granted." However, his claim of error ignores that "[t]here is . . . a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue." (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Garcia makes no effort to explain how the Provencio incident, which was clearly at a different place and time and involved different officers, was so relevant to the disputed issues that its exclusion was an abuse of discretion. (See People v. Crittenden (1994) 9 Cal.4th 83, 132 [a "trial court has broad discretion in determining the relevance of evidence"].) Accordingly, we will not disturb its ruling here.
Garcia also contends that the court abused its discretion by sustaining various objections by Officer Lerma to a declaration by Expert Daniel Vasquez submitted by Garcia in opposition to Lerma's summary judgment motion. He asserts this was error because (1) Vasquez's background qualified him as an expert who could render opinions and (2) he could express opinions on ultimate issues. "It is settled that a trial court has wide discretion to exclude expert testimony . . . that is unreliable" including "testimony [ruled] inadmissible on grounds that it was unduly speculative, based on unreliable hearsay, and without an adequate foundation." (People v. McWhorter (2009) 47 Cal.4th 318, 362; accord, People v. McDowell (2012) 54 Cal.4th 395, 425-426.)
Vasquez, a purported expert, opined that Officer Lerma used excessive force because (1) Garcia had not commenced threatening or attacking any other inmates or correctional officers, (2) Garcia did not overtly brandish a weapon, (3) Garcia conduct posed no threat of escaping, (4) Garcia conduct posed no threat of triggering a riot because other inmates had "gotten down," and (5) Lerma used the sponge round rather than the wooden block round. Lerma's objections to Vasquez's conclusions included that his opinion lacked foundation, was based on incomplete or incorrect assumptions as to the facts, was based on speculation, and encompassed purely legal conclusions. The court sustained these objections. --------
Garcia has the burden on appeal both to show the ruling was an abuse of that discretion and to show there was resulting prejudice. (People v. Hill (2011) 191 Cal.App.4th 1104, 1122.) Here, he merely asserts the court should have made a different ruling because Vasquez was an expert and was entitled to opine that the force used by Officer Lerma was excessive under the circumstances. Because Garcia's appellate argument contains no articulation of why the ruling was an abuse of the court's discretion, nor any argument as to how the exclusion of Vasquez's opinion was prejudicial on question of Lerma's culpable mental state, we reject Garcia's claim that these evidentiary rulings require reversal of the trial court's judgment.
DISPOSITION
The judgment is affirmed. The respondent shall recover costs on appeal.
DATO, J. WE CONCUR: NARES, Acting P. J. AARON, J.