Opinion
3:21-cv-00311-MMD-CLB
04-19-2023
JASMINE PAUL SANCHEZ, Plaintiff, v. MITCHELL SHARP Defendants.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Mitchell Sharp, by and through counsel, Aaron D. Ford, Attorney General for the State of Nevada, and Taylor M.L. Rivich, Deputy Attorney General, hereby move for Summary Judgment pursuant to Fed.R.Civ.P. 56.
MEMORANDUM OF POINTS AND AUTHORITIES
I. RELEVEANT BACKGROUND
Sanchez filed this action, pro se, pursuant to 42 U.S.C. § 1983. ECF No. 1. After mandatory screening, this Court ordered Sanchez to proceed with two claims: (i) a conditions of confinement claim against Correctional Officer Sharp (Officer Sharp) and (ii) an excessive force claim against Officer Sharp. ECF No. 9 at 6-7. The State of Nevada's Office of the Attorney General (OAG) accepted service on behalf of Officer Sharp on July 8, 2022. ECF No. 64. Defendants filed an Answer to the Complaint asserting all relevant affirmative defenses. See ECF No. 20. This Court issued a discovery plan and scheduling order setting the deadline for dispositive motions for April 19, 2023. ECF No. 31 at 6.
II. UNDISPUTED FACTS
Sanchez was booked into the Nevada Department of Corrections (NDOC) on October 21, 2015. Ex A at 1 (Historical Bed Assignments). Sanchez has been transferred between various prison institutions. Id. On December 13, 2016, Sanchez was transferred to Ely State Prison (ESP), which is where he is currently housed. Id. at 1-2.
On Sunday, February 14, 2021, at approximately 1:13 p.m., Officer Sharp used limited spontaneous force on Sanchez after Sanchez reached past Officer Sharp's protective shield. Ex. B at 1 (Investigation Detail Report - IR-2021-ESP-000351). There was a delay in Sanchez receiving his food because Sanchez had captured his food slot, resulting in him being the last inmate fed. Id. Sanchez demanded a new breakfast tray because there was a little bit of oatmeal in his eggs. Id. Sanchez threatened that he would throw feces and urine at Officer Sharp. Id. Sanchez was instructed to clear his window, back up, and lift his jacket and spin around, and Sanchez complied. Id. The food slot was opened, the shield was placed in front of the food slot, and Sanchez was given his food tray. Id.
“After receiving his dinner tray when the shield was being lifted so the slot could be shut, he stuck his arm out and underneath the shield and demanded his toilet paper.” Id. When Sanchez stuck his arm out, Officer Sharp placed the shield on Sanchez's arm and used a minimal amount of force to trap Sanchez's arm so that he could not throw anything out of the food slot at himself or non-party Officer Clay. Id. Officer Sharp then removed the capture shield, backed away, gave Sanchez toilet paper, and secured the food slot. Id. The Shift Sergeant was notified of the use of force, and Medical responded to the scene. Id. Sanchez not only refused medical care, but also told both Nurse Love and Nurse Schuering that nothing happened, there was no force, and he just wanted his dinner tray. Id.
Officer Sharp's decision to use a protective shield under the circumstances was reasonable based on Sanchez's threat to throw feces and urine, and also because Sanchez has a has a long disciplinary history of such actions Specifically, Sanchez had “propelling” charges filed against him on, at least, August 4, 2016, August 26, 2016, October 5, 2016, December 27, 2016, January 20, 2017, February 2, 2017, November 10, 2017, May 17, 2018, May 22, 2018, September 19, 2018, December 9, 2018, August 3, 2019, August 16, 2019, September 25, 2019, September 30, 2019, October 4, 2019, January 19, 2020, February 13, 2020, March 19, 2020, March 25, 2020, August 2, 2020, August 10, 2020, May 4, 2021, May 9, 2021, August 1, 2021, August 21, 2021, and October 6, 2021. Ex. C at 1-46 (Inmate Disciplinary History Report).
Officer Sharp's version of events on February 14, 2021 is corroborated by others' reports of the incident. Officer Clay's report states that Sanchez sticking his arm out of the food slot was perceived as a threat and that Officer Sharp used a minimal amount of force. Id. at 2. Nurse Schuering wrote that Sanchez refused medical care and stated, “what problem?” and “nothing happened.” Id. Similarly, Sergeant Christopher Miller wrote that he accompanied medical staff to Sanchez's cell, watched Sanchez refuse medical treatment and heard Sanchez say, “Seen for what? Nothing happened, the officers feed [sic] me and I gave back my tray. Nothing happened.” Nurse Scheuring reported that Sanchez refused medical treatment, and a refusal of treatment and release of liability was placed in Sanchez's file. See Ex. D at 1 (Medical Incident Report 02/14/2021); Ex. E at 1 (Release of Liability for Refusal of Health Care Treatment).
Sanchez never claimed that Officer Sharp deprived him of food for three days. Ex. F at 1-126 (Inmate Grievance History). In grievance #2006-31-2121, Sanchez claims that Officer Sharp denied him his food and harassed him on February 14, 2021. Ex. G at 12 (Grievance #2006-31-21211). However, on that day, Sanchez captured his food slot, which resulted in him being the last inmate to get his food that morning. Ex. C at 1. In this same grievance, he did allege that Officer Sharp used unnecessary force, but Sanchez never filed a proper second level grievance. See Ex. G at 1-13.
III. LEGAL STANDARD
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted). Summary judgment allows courts to avoid unnecessary trials when there is no dispute as to the facts. Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). While all reasonable inferences should be construed in favor of the non-moving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). The purpose of summary judgment is to isolate and then terminate claims that are factually unsupported. Id. at 323-24. A moving party is not required to disprove the non-moving party's claims. Id. Instead, the moving party is simply required to point out the absence of evidence supporting the non-moving party's claims. Id.
Once the moving party meets his initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact does indeed exist. Matsushita, 475 U.S. at 586. Material facts are facts that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court should not consider disputes concerning irrelevant or unnecessary facts. Id.
When attempting to establish the existence of a genuine issue of material fact, the opposing party is not permitted to merely rely upon its pleadings but is required to tender evidence of specific facts in the form of affidavits, admissible evidence, or discovery materials. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; Anderson, 477 U.S. at 255. Reasonable inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E. D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; T.W. Elec. Serv., 809 F.2d at 631. The court is concerned with establishing the existence of genuine issues, and “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587.
IV. LEGAL ARGUMENT
This Court should grant summary judgment and dismiss Sanchez's complaint against Sharp for the following reasons. First, Sanchez failed to exhaust his administrative remedies regarding his allegation that Officer Sharp withheld food from him for three days. Second, Officer Sharp did not actually deprive Sanchez of food. Third, Officer Sharp's use of force does not qualify as excessive force under the Eighth Amendment. Fourth, Defendants are entitled to qualified immunity because there is no clearly established law that the minimal amount of force applied by Officer Sharp amounts to a constitutional violation.
A. Plaintiff failed to exhaust his administrative remedies
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies requires an inmate to use “all steps the agency holds out and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion protects an administrative agency's authority; it “gives an agency ‘an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into [. . .] court,' and it discourages ‘disregard of [the agency's] procedures.'” Id. at 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). The PLRA's administrative exhaustion requirement also promotes judicial economy by “‘reduc[ing] the quantity and improv[ing] the quality of prisoner suits.'” Id. at 93 (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002). “The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance.” Woodford, 548 U.S. at 95.
The Supreme Court has strictly construed the mandatory exhaustion provision of the PLRA. Booth v. C.O. Churner, 532 U.S. 731, 741 n.6 (2001) (“We will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise”). The Ninth Circuit has clarified that § 1997e(a) requires the complete exhaustion of administrative remedies before a civil complaint is filed. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). “Exhaustion subsequent to the filing of suit will not suffice.” Id. (citing Booth, 532 U.S. at 738).
In Ross v. Blake, 136 S.Ct. 1850 (2016), the United States Supreme Court foreclosed judicial discretion with respect to exhaustion by stating that “the test suggests no limits on an inmate's obligation to exhaust. That mandatory language means a court may not excuse a failure to exhaust, even to take ‘special circumstances' into account.” Id. at 1853 (emphasis added). The Court expounded that the lack of judicial discretion is so total that courts cannot excuse the exhaustion requirement even in circumstances where “a prisoner makes a reasonable mistake about the meaning of a prison's grievance procedures.” Id.
Administrative Regulation 740
AR 740 is the administrative remedy available to all inmates within NDOC and is commonly referred to as the “grievance process” because of the grievances that are required to exhaust this remedy. AR 740 requires an inmate to properly follow the three levels of the grievance process to exhaust. See Ex. H at 8-14, 740.07 - 740.10 - Administrative Regulation 740 eff. November 20, 2018. Inmates may file an emergency grievance when there is a life-threatening issue for the inmate or a safety and security risk for the institution. Id. at 8, 740.07(1). If the event is not an emergency, then the inmate must file an informal level grievance. Id. at 9, 740.08(1). The informal level grievance may be filed only “after failing to resolve the matter by other means such as discussion with staff or submitting an inmate request form.” Id. If the inmate is not satisfied with the response at the informal level, then the inmate must file an appeal within five calendar days. Id. at 11, 740.08(12)(A). The appeal of the informal response is a first level grievance. Id. at 11, 740.09. If the inmate is not satisfied with the first level grievance response, then the inmate has five calendar days to appeal. Id. at 13, 740.09(5)(A). The appeal of the first level grievance is a second level grievance. Id. at 13, 740.10. Once an inmate receives an official response to the second level grievance, or if the time for response expires, then the inmate has properly exhausted the administrative remedy.
Here, Sanchez did not exhaust his administrative remedies. NDOC never even had the chance to resolve Sanchez's claim that Officer Sharp deprived him of food for three days, because Sanchez never made that allegation until his complaint. Even if Sanchez had argued in his grievance that he was deprived of food for three days, that claim would fail because he never submitted a proper second level grievance. Likewise, the claim that Officer Sharp used excessive force fails because Sanchez filed this lawsuit without allowing the second level grievance responders at NDOC the opportunity to resolve Sanchez's grievance.
B. Defendant did not deprive Plaintiff of food
The “treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 328 F.3d 726, 731 (9th Cir. 2000).
To challenge the conditions of confinement under the Eighth Amendment, a plaintiff must meet both an objective and subjective test. Id. The objective prong requires a showing that the deprivation was sufficiently serious to form the basis for an Eighth Amendment violation. Id. “[E]xtreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillan, 503 U.S. 1, 9 (1992). When considering the conditions of confinement, a court also should consider the amount of time to which the prisoner was subjected to the condition. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).
As to the subjective prong of the Eighth Amendment analysis, prisoners must establish prison officials' “deliberate indifference” to the unconstitutional conditions of confinement to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To demonstrate that a prison official was deliberately indifferent to a serious threat to the inmate's safety, the prisoner must show that “the official [knew] of and disregard[ed] an excessive risk” to the inmate's safety. Id. at 837.
Here, in grievance #2006-31-21211, Sanchez claimed that Officer Sharp denied him food; however, Sanchez was not denied food, but was fed last, due to Sanchez capturing his food slot. See Ex. I at 1-2 Sanchez had breakfast food, which he did not want because he saw oatmeal in his eggs. Importantly, Sanchez never made the claim that Officer Sharp deprived him of food for three days until his complaint. Thus, Sanchez has no support for his exaggerated claims.
C. Defendant did not use excessive force
In order to establish a claim for excessive force under the Eighth Amendment, a plaintiff must satisfy a two-part inquiry: (1) a subjective inquiry that asks whether prison staff acted with a sufficiently culpable state of mind, and (2) an objective component that asks whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. Hudson v. McMillan, 503 U.S. 1, 8 (1992).
The subjective prong is satisfied if the officer's actions were not “a good faith effort to maintain or restore discipline,” and the officer acted “maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S. 312, 320-321 (1986)). The objective prong requires Courts to consider five factors: (i) the extent of injury suffered by an inmate, (ii) the need for application of force, (iii) the relationship between that need and the amount of force used, (iv) the threat reasonably perceived by the responsible officials, and (v) any efforts made to temper the severity of a forceful response. Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013).
Courts recognize that prison official should be given “wide-ranging deference” when exercising their judgment to maintain prison safety, as their decisions are often “made in haste, under pressure, and frequently without the luxury of a second chance.” See Simmons v. G. Arnett, 47 F.4th 927, 933 (9th Cir. 2022); see also Whitley, 475 U.S. at 320. “In the specialized context of prison operations, the use of force can be a “legitimate means for preventing small disturbances from becoming dangerous to other inmates or the prison personnel.” Simmons, 47 F.4th at 933 (quoting Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979)).
Here, Officer Sharp used reasonable force under the circumstances. Officer Sharp trapped Sanchez's arm with his shield in response to Sanchez sticking his arm out, which Officer Sharp perceived as a threat due to Sanchez's long history of propelling urine and other materials out of his cell through the food slot. See Ex. I at 2. In fact, Sanchez threatened Officer Sharp earlier that same day that he would throw feces at him. Importantly, Sanchez did not suffer any injury, stated that nothing happened, and refused medical treatment. These facts were corroborated by several accounts of the same incident. Briefly trapping Sanchez's arm with the shield cannot be considered unreasonable in these circumstances.
D. Defendants are entitled to qualified immunity
Defendants are entitled to qualified immunity. It is a long-standing principle that governmental officials are shielded from civil liability under the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The defense of qualified immunity protects “government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The rule of qualified immunity “‘provides ample support to all but the plainly incompetent or those who knowingly violate the law.'” “Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not ‘clearly established' or the officer could have reasonably believed that his particular conduct was lawful.” Furthermore, “[t]he entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.”Shroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995) (emphasis in original) (internal citations omitted).
When conducting the qualified immunity analysis, courts “ask (1) whether the official violated a constitutional right and (2) whether the constitutional right was clearly established.” C.B v. City of Sorona, 769 F.3d 1005, 1022 (9th Cir. 2014) (internal citation omitted).
The second inquiry, whether the constitutional right in question was clearly established, is an objective inquiry that turns on whether a reasonable official in the position of the defendant knew or should have known at the time of the events in question that his or her conduct was constitutionally infirm. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987); Lacey v. Maricopa Cty, 693 F.3d 896, 915 (9th Cir. 2012).
Only where a governmental official's belief as to the constitutionality of his or her conduct is “plainly incompetent” is qualified immunity unavailable. Stanton v. Sims, 134 S.Ct. 3, 5 (2013) (per curiam). Governmental officials are entitled to high deference when making this determination, Anderson, 483 U.S. at 640, requiring the Court to assess whether qualified immunity is appropriate “in light of the specific context of the case.” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). The Ninth Circuit recently clarified that qualified immunity applies when “their conduct does not violate clearly established Statutory or Constitutional rights . . . which a reasonable person would have known [.]” Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019).
In determining “whether a [constitutional] right was clearly established,” this Court is to survey the law within this Circuit and under Supreme Court precedent “at the time of the alleged act.” Perez v. United States, 103 F.Supp.3d 1180, 1208 (S. D. Cal. 2015) (quoting Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citing Bryan v. MacPherson, 630 F.3d 805, 933 (9th Cir. 2010)). As such, “liability will not attach unless there exists a case where an officer acting under similar circumstances . . . was held to have violated the [constitutional right.]” Emmons, 921 F.3d at 1174 (citing White v. Pauly, 137 U.S. 548, 551-52 (2017) (per curiam). Although there need not be an identical case, “existing precedent must have placed the . . . question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “Qualified immunity protects actions in the ‘hazy border between excessive and acceptable force.” Mullenix v. Luna, 136 S.Ct. 305, 312 (2015) (internal citation omitted).
Here, Defendant incorporates pages 5-9 of the instant motion for summary judgment to show that Officer Sharp did not violate a constitutional right. Sanchez has a history of propelling urine and other materials out of his cell through the food slot, so Officer Sharp reasonably perceived a threat from Sanchez and used the minimum amount of force necessary to restore discipline. Most importantly, Sanchez was not even injured as a result of the incident. The law did not clearly prohibit Officer Sharp's conduct.
V. CONCLUSION
The Court should grant summary judgment in favor of Officer Sharp. Sanchez never even grieved the issue of being deprived of food for three days. The deprivation of food Sanchez complained of was temporary and only occurred because Sanchez had captured his food slot. Officer Sharp used reasonable force under the circumstances; Sanchez was not even injured. Finally, Officer Sharp is entitled to qualified immunity because his conduct was not prohibited by any clearly established law.
EXHIBITS
Ex. A - Historical Bed Assignments
Ex. B - Investigation Detail Report - IR-2021-ESP-000351
Ex. C - Inmate Disciplinary History Report
Ex. D - Medical Incident Report 02/14/2021 (filed under seal)
Ex. E - Release of Liability for Refusal of Health Care Treatment (filed under seal)
Ex. F - Inmate Grievance History
Ex. G - Grievance #2006-31-21211
Ex. H - Administrative Regulation 740 - Inmate Grievance Procedure - eff. November 20, 2018
Ex. I - Declaration of Officer Mitchell Sharp