Opinion
No. C 01-0739 PJH (PR), (Docs 183, 189, 232).
September 20, 2005
ORDER GRANTING SUMMARY JUDGMENT
This is a civil rights case filed pro se by a state prisoner. Before the court for ruling are the opposed motion for summary judgment filed by defendants Santa Cruz County Sheriff's Department, Craig Wilson, James Skillicorn, James Thurber, Amy Christey and Roy Morales; the motion for summary judgment by defendant McGannon; and the unopposed motion for summary judgment filed by defendants Rahiri and Ragsac.
Plaintiff filed a paper captioned "Plaintiff's Notice of Motion and Opposition to Santa Cruz County Defendants['] Memorandum Points and Authorities in Support of Their Motion for Summary Judgment And/or Partial Summary Judgment. . . ." This opposition does not seem to be addressed to Dr. McGannon's motion; so far as appears in the record, the doctor has nothing to do with Santa Cruz, whereas the defendants who are referred to here as the "Santa Cruz defendants" are all employees of Santa Cruz County. As Dr. McGannon notes in his reply, however, plaintiff does contend in the opposition that the doctor was involved in the purportedly unconstitutional x-ray and blood draw. The court has considered the opposition in ruling on Dr. McGannon's motion.
BACKGROUND
Plaintiff escaped from the custody of the Santa Cruz County Sheriff's Department. Before he escaped he was shackled and handcuffed, leading authorities to suspect that he possessed a key to unlock the handcuff. He was apprehended by Monterey County Sheriff's deputies about eight hours after the escape. During the course of his apprehension, he was bitten by a police dog. The officers took him to Watsonville Community Hospital, where he was treated for the dog bite. He was also x-rayed in search of a handcuff key, and his blood was drawn for a blood test.DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party.Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986); Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this burden of production, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Id.
B. Analysis
1. Motion for summary judgment by Santa Cruz County defendants
Defendants Santa Cruz County Sheriff's Department, Craig Wilson, James Skillicorn, James Thurber, Amy Christey and Roy Morales (hereafter referred to as the "Santa Cruz County defendants"), contend that they are entitled to summary judgment because (1) plaintiff failed to exhaust his administrative remedies; (2) they did not violate plaintiff's Eighth or Fourth Amendment rights; (3) they are entitled to qualified immunity; and (4) plaintiff cannot show a genuine issue of material fact that there was a conspiracy.
a. Exhaustion
Title 42 U.S.C. § 1997e provides that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], 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).
The Santa Cruz County defendants contend that plaintiff failed to exhaust, based on his statement in his original complaint that the exhaustion requirement was "N/A" because "the incident did not occur at Corcoran State Prison." In his opposition plaintiff points out that in his second amended complaint he alleged that he filed a tort claim against the county, which he asserts is sufficient to exhaust.
The exhaustion requirement applies only to claims which are "with respect to prison conditions." 42 U.S.C. § 1997e(a). Plaintiff's claims, which involve steps taken by the arresting officers and hospital workers in a hospital, are not "with respect to prison conditions." See Witzke v. Femel, 376 F.3d 744, 752 (7th Cir. 2004) ("[T]he obvious limit to the plain wording of the term `prison conditions' is that only complaints relating to conditions within a prison or correctional facility are subject to the exhaustion requirements. Conditions unrelated to that situation cannot be said to be about prison conditions: Only complaints about the `conditions of confinement,' 18 U.S.C. § 3626, in `any jail, prison, or other correctional facility,' 42 U.S.C. § 1997e(a), can be characterized properly as involving `prison conditions.'").
The exhaustion requirement therefore does not apply.
b. Fourth and Eighth Amendment claims
The Santa Cruz County defendants assert that plaintiff's Fourth and Eighth Amendment rights were not violated when his blood was drawn and when he was x-rayed.
Plaintiff was a convicted prisoner when he escaped from custody while being transported by deputies of the Santa Cruz County Sheriff's Department. He escaped despite having been handcuffed and shackled, leading them to believe that he had a handcuff key. He was recaptured by Monterey County sheriff's deputies after about eight hours, and taken to Watsonville hospital where the deputies ordered that he be x-rayed and that blood be drawn. None of this is disputed.
The Santa Cruz County defendants assert that plaintiff's claims should be viewed as would be claims brought by a convicted prisoner, rather than under the slightly different analysis appropriate to claims by arrestees. For instance, excessive force claims by arrestees are analyzed under the Fourth Amendment, rather than the Eighth Amendment which applies to convicted persons. See Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1043 (9th Cir. 1996). Given that plaintiff was indeed a convicted prisoner, albeit one who had temporarily escaped, the standards applicable to such persons is applicable here.
i. X-ray
Plaintiff contends that the x-ray amounted to a search which violated his Fourth Amendment right to be free from unreasonable searches. In determining whether a particular prisoner search violates the Fourth Amendment, the court must consider the scope of the intrusion, the manner in which the search is conducted, the justification for the search, and the place where the search is conducted. Bell v. Wolfish, 441 U.S. 520, 559 (1979); Thompson v. City of Los Angeles, 885 F.2d 1439, 1445-47 (9th Cir. 1989) (applying Bell test to claims arising from blood draw and x-ray).
Application of the four-factor test is simple in this case, because although the intrusion was significant, see id. at 1447 (noting "the serious instrusive nature" of "forced submission to radioactive rays"), there is no indication that the scope of the x-ray intrusion exceeded what was necessary to determine whether plaintiff had swallowed the handcuff key; the search was conducted by hospital personnel, ensuring that the manner of search was appropriate; the justification for the search was strong, given the obvious security risk; the search occurred in a most reasonable place, a hospital; and plaintiff was destined for a place with high security needs, a jail. The court finds that the x-ray search did not violate plaintiff's Fourth Amendment rights. See id. (routine x-ray and blood draw upon admission to jail do not violate Fourth Amendment).
Plaintiff also contends that the x-ray search violated his Eighth Amendment rights. "After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment."Whitley v. Albers, 475 U.S. 312, 319 (1986). A prisoner shows a violation of his or her Eighth Amendment rights only if two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 824, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the defendant possesses a sufficiently culpable state of mind, i.e., the offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297). In this case, all that happened was that an x-ray was taken; although this does involve exposure to radiation, it is also a routine medical procedure, and plaintiff has not shown that the exposure to radiation exceeded normal limits or particularly endangered him. There also is no genuine issue that defendants acted to find out if plaintiff had swallowed a handcuff key and not for an improper or wanton purpose. Therefore, the x-ray did not involve a deprivation sufficiently serious to implicate the Eighth Amendment, and defendants did not act with the necessary culpable state of mind.
ii. Blood draw
Plaintiff's conduct in recklessly resisting the attempts to recapture him, especially his having ignored the warning that the officers would turn loose their dog, suggested he might be under the influence of a medication or illegal drug. Defendants therefore ordered a blood test to determine if he required special treatment at the jail. Plaintiff disputes that he was under the influence of alcohol or illegal drugs, but does not raise a genuine issue of material fact as to whether defendants could reasonably have suspected that he was.
Non-consensual extraction of blood implicates the Fourth Amendment's protection against unreasonable searches and seizures. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989). However, as with the x-rays, application of theBell v. Wolfish factors shows that the blood extraction here did not violate plaintiff's Fourth Amendment rights. See Bell, 441 U.S. at 559. Although the intrusion is greater than simple exposure to x-rays, such an intrusion is not exceptional or extraordinary today. See Skinner, 489 U.S. at 625. There is no indication that the manner in which the blood was drawn was unreasonable, the justification was compelling, and, as before, the place where the search occurred, a hospital, and the need for security in the jail for which plaintiff was bound, are factors weighing in favor of a finding that the search was reasonable.See United States v. Kincade, 379 F.3d 813, 839-840 (9th Cir. 2004) (en banc) (mandatory blood draws for DNA testing of persons on conditional release does not offend the Fourth Amendment);Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995) (Oregon statute requiring convicted murderers and sex offenders to submit to blood testing for DNA analysis did not violate Fourth Amendment).
Plaintiff's Eighth Amendment claim is equally without merit. For the reasons discussed above, there is no genuine issue of material fact that the blood draw (1) did not constitute a "sufficiently serious" deprivation as to implicate the Eighth Amendment, and (2) that the defendants did not possesses a sufficiently culpable state of mind. Farmer, 511 U.S. 834.
The Santa Cruz County defendants thus have established that there is no genuine issue of material fact as to whether they violated plaintiff's Fourth or Eighth Amendment rights, and that on those facts they are entitled to judgment as a matter of law.
c. Qualified immunity
In view of the determination above that plaintiff's rights were not violated, it is unnecessary to reach this issue.
d. Conspiracy
Plaintiff alleged that defendants conspired to violate his constitutional rights. Assuming this is an attempt to allege a violation of his rights under 42 U.S.C. § 1985(3), plaintiff has failed to show a genuine issue of material fact as to the existence of such a conspiracy, and that his race had any bearing on the events which gave rise to this claim. See Kush v. Rutledge, 460 U.S. 719, 724-26 (1983) (cause of action under § 1985(3) requires a showing of racial or class-based discrimination).
Accordingly, the motion for summary judgment of the Santa Cruz County defendants is GRANTED.
2. Motion for summary judgment by defendant McGannon
Dr. McGannon ordered the x-ray at the request of the deputies. In view of the court's determination above that plaintiff's rights were not violated, and for the additional reason that there is no genuine issue of material fact that Dr. McGannon was not involved in the blood draw, his motion for summary judgment is GRANTED.
3. Motion for summary judgment by defendant Ragsac and Rahiri
These defendants are Monterey County Sheriff's deputies who apprehended plaintiff and whose police dog bit plaintiff on the elbow. Plaintiff contends that they used excessive force, because the dog was ordered to attack him. Plaintiff has not opposed this motion for summary judgment.
A district court may not grant a motion for summary judgment solely because the opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 n. 4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that there are no material issues of fact). The court may, however, grant an unopposed motion for summary judgment if the movant's papers are themselves sufficient to support the motion and do not on their face reveal a genuine issue of material fact. See United States v. Real Property at Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic entry of judgment for moving party without consideration of whether motion and supporting papers satisfy Fed.R.Civ.P. 56), rev'd on other grounds sub nom. Degen v. United States, 517 U.S. 820 (1996); Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993) (same).
The papers in support of the motion for summary judgment show that plaintiff, despite having been warned to surrender, and that if he did not the dog would be released, ran at deputy Ragsac. Ragsac released the dog, which bit plaintiff on the elbow, securing him until the officers could subdue him. Plaintiff admits that he resisted arrest. The papers establish that the use of force was reasonable.
The movants' papers are sufficient to support the motion and do not on their face reveal a genuine issue of material fact. The motion for summary judgment will is GRANTED.
CONCLUSION
For the foregoing reasons, the motions for summary judgment filed by the Santa Cruz defendants (doc 183), by Dr. McGannon (doc 189), and by deputies Ragsac and Rahiri (doc 232 are GRANTED.
IT IS SO ORDERED.