Opinion
Case No. 96-CV-002 B.
March 16, 2000
REPORT AND RECOMMENDATION
Plaintiff, Adrian Hickey, while a prisoner at Utah State Prison (USP), at Draper, filed the instant action under 28 U.S.C. § 1343 (3) and 42 U.S.C. § 1983 claiming a violation of his civil rights by Stephen Tuttle and Delain Smith, officers at the Utah State Prison. The plaintiffs alleged that on September 8, 1995 plaintiff was physically assaulted by the use of excessive force by the defendants and another unnamed officer while plaintiff was being transported to a court hearing. When he was assaulted, Smith allegedly said he would get even with plaintiff for "slimeing" him in 1992 and "would learn to file lawsuits against him." This was said while Tuttle was choking plaintiff.
A-team officers arrived and medical assistance was requested. Plaintiff alleges that nothing was done for him. Plaintiff seeks damages.
The defendants filed an answer denying plaintiff's allegations alleging that on September 8, 1995 when plaintiff was awaiting transportation to court, plaintiff refused a direct order to enter a cell. Plaintiff was secured outside the cell on the floor and an A-Team called. He was forcibly escorted to his cell.
The court appointed counsel to represent the plaintiff. The defendants filed a motion for summary judgment (File Entry 24). Affidavits were submitted with the motion and a memorandum submitted on the motion (file Entry 25). A memorandum was filed in opposition to the defendants' motion for summary judgment (File Entry 26), with an affidavit from plaintiff Adrian Hickey.
Additional counsel was added to assist the original appointed counsel for plaintiff.
The case has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendants' motion for summary judgment.
EVIDENCE AND MOTION FOR SUMMARY JUDGMENT
The defendants', Tuttle and Smith, memorandum contains a statement of undisputed facts. See DUCivR 56-1(b). The plaintiff is an inmate at the USP and on September 8, 1995 at 8:45 hours plaintiff arrived at reception and orientation unit (RO) after being transferred from the Central Utah Correctional Facility (CUCF) pending appearance at a court hearing. He was escorted by defendant Officer Delain Smith and transportation Officer Scott Elliott to section A, but defendant refused to enter his cell referring to "demons" (File Entry #25, p. 2). Plaintiff said he wished to speak to Sergeant Stephen Tuttle, also a defendant, and Tuttle arrived. Tuttle told plaintiff he had been instructed to house plaintiff in A section. Plaintiff refused Tuttle's command for plaintiff to enter the cell saying it had been "demonized." (Id. p. 3). Tuttle instructed plaintiff to face the wall and the plaintiff replied "it took 15 officers to take me down in Gunnison." (Id. ¶ 8 p. 3). A second order was given and plaintiff balked and Tuttle commenced to turn plaintiff to the wall. Plaintiff was free of shackles and waste chains and apparently attempted to breakaway and pushed Tuttle (Id. p. 10).
Pursuant to Utah Department of Corrections (UDC) policy on Management and Control of Disruptive Inmates plaintiff was grabbed on the right arm and left shoulder by Tuttle and with the assistance of Officers Smith and Elliott was taken to the floor. Plaintiff struck Sergeant Tuttle several times in the side of the head. Tuttle secured plaintiff's head on the floor, applied a pressure point control and Officer Smith called for A-team support. A-team officers arrived and leg restraints were placed on plaintiff and he was held against the wall. The medical department was called and two medical technicians came and plaintiff was examined.
There was blood on plaintiff's cheek and a small cut inside plaintiff's cheek that did not require treatment. There were scratches on plaintiff's wrists from handcuff movement. Plaintiff was placed in another cell and unrestrained. Later he was moved to Uinta II, Section IV. Plaintiff did not seek medical treatment by making a request pursuant to the procedure for such service. Plaintiff sought medical care ten times during the period from September 9 to September 29, 1995 but did not complain of bruises, cuts, or damage from the incident.
Supporting documentation from reports was submitted as to the asserted facts. Affidavits from Officer Smith, Sergeant Tuttle, and others was submitted supporting the statement of uncontested facts.
The plaintiff's memorandum contains a statement of disputed material facts (File Entry #26). The plaintiff contends at no time did he refuse to enter the designated cell at A-7 or state there were demons in his cell. Hickey states he did not ask to speak to Tuttle and he was already in the section. Hickey denies he was told he was to be housed in Cell A-7 and Tuttle did not order him to enter the cell. Hickey states he did not refuse an order or state the cell was demonized. Hickey denies he said it took 15 officers to take him down at the CUCF. Tuttle did not repeat his order for Hickey to face the wall. Hickey claims he was fully restrained and did not act assaultive or aggressive to Tuttle, Smith, or Ellett. Hickey was attacked by Smith, Tuttle, and Ellett and Tuttle grabbed Hickey's throat and said "you will learn not to file frivolous lawsuits on me." Smith grabbed Hickey's handcuffed arms and said "Hickey I told you I would get you for slimeing me." Hickey, while on the floor, was fully restrained and did not fling his arms around and did not strike Tuttle on the head. Tuttle asserts the A-team did not apply leg shackles to him as his legs were already restrained. A medtech told him he had a cut on his mouth and a knot on his head. The contentions of plaintiff are supported by Hickey's affidavit.
Plaintiff offered evidence he was found not guilty of assault and battery at a prison disciplinary hearing. That statement is not correct. The hearing officer found plaintiff guilty of battery, but not assault (Exhibit A to plaintiff's documentation in response to summary judgment).
Neither party objected to any part of the submissions.
Standard for Summary Judgment
The defendants Tuttle and Smith have moved for summary judgment under Rule 56, F.R.C.P. The defendants must present evidence that there is no material issue of fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The plaintiff, having the burden of proof at trial, must come forward with evidence and demonstrate that there is a material issue of fact for trial. Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Barney v. Gillespie, 813 F. Supp. 1537 (D.Utah 1993). The evidence must be viewed in a light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d 1269,1273 (10th Cir. 1988). Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114 (10th Cir. 1991). The court, on summary judgment, does not weigh evidence on credibility. Salt Lake City Corp. v. Kasler, 842 F. Supp. 1380 (D.Utah 1994).
If after consideration of both submissions of the parties if there is a material issue of fact, the motion for summary judgment should be denied.
DISCUSSION
In order for plaintiff to sustain a claim for relief under 42 U.S.C. § 1983, given the date of the alleged occurrence, he must show a violation of the Eighth Amendment. Force used in a good faith effort to "maintain or restore discipline" is proper whereas force used "maliciously or sadistically to cause harm" is not. Hudson v. McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S. 312 (1986); Mitchell v. Maynard, 80 F.3d 1433,1440 (10th Cir. 1996); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A demonstration of a serious physical injury is not required if the prisoner was harmed by unreasonable or unjustified force. Only some injury is required. Hudson v. McMillan, supra. Force may not be used in retaliation against an inmate for prior misconduct. Mitchell v. Keane, 974 F. Supp. 332 (S.D.N.Y. 1997). However, an inmate who is aggressive and violent may be aggressively subdued. Richardson v. Van Dusen, 833 F. Supp. 146 (N.D.N.Y. 1993).
The suit was filed prior to the Prisoner Litigation Reform Act.
An excessive force claim involves two prongs: (1) an objective prong that asks "if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation" and (2) a subjective prong under which the plaintiff must show that "the officials acted with a sufficiently culpable state of mind." Girron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999). The subjective standard is that expressed in Hudson as to whether the force was exercised in good faith or maliciously or sadistically. Id. De minimis use of force is not wanton or unnecessary unless it is "repugnant to the conscience of mankind." Hudson, 503 U.S. 1, 9-10.
If factual questions are raised as to the legitimacy of the force used against an inmate, summary judgment is improper. Green v. Branson, 108 F.3d 1296 (10th Cir. 1997) (summary judgment was not proper in a case involving force used against a prisoner).
The defendants contend they are entitled to qualified immunity. The argument is without merit. The law was "clearly established" at the time of the alleged conduct that wanton force against an inmate was a violation of civil rights. Hudson, supra; Whitley, supra; Harris By and Through Harris v. Maynard, 843 F.2d 414 (10th Cir. 1988). If the plaintiff's version of the facts is true, there is no basis on which defendants could claim qualified immunity based on a contention that their actions could be considered to be reasonable. Therefore, defendants are not entitled to summary judgment based on qualified immunity.
National Commodity and Barter Ass'n v. Archer, 31 F.3d 1521 (10th Cir. 1994); Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Defendants have not asserted that Hunter v. Bryant, 502 U.S. 224 (1991) is applicable to this case.
The defendants have asserted that they were not indifferent to plaintiff's medical needs. Although plaintiff's complaint and affidavit makes references to lack of adequate medical attention, that was not clearly asserted as a claim against the named defendants. Further, when defendant Tuttle called for A-team and medtech response, everything he or Smith could do was done. There is no claim against Tuttle and Smith for failure to provide proper medical attention. If there is such a claim, it is without merit as to defendants Smith and Tuttle. Estelle v. Gamble, 429 U.S. 97 (1976).
Applying the recited standards to the facts presented in the defendants' motion for summary judgment, the defendants would be entitled to summary judgment if their facts were undisputed. However, plaintiff's affidavit contradicts every material fact asserted by defendants. If the plaintiff's facts were found to be true, plaintiff would be entitled a judgment under 42 U.S.C. § 1983. If the defendants' version were believed they would be entitled to resolution of the case in their favor. Therefore the defendants' motion for summary judgment should be DENIED.
CONCLUSION
Defendants' motion for summary judgment is opposed by material issues of fact and defendants' motion should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.