Avratin v. Bermudez

Decision Date05 January 2006
Docket NumberNo. 99CV2119DMS (POR).,99CV2119DMS (POR).
Citation420 F.Supp.2d 1121
PartiesAdam S. AVRATIN, Plaintiff, v. M. BERMUDEZ, in his individual capacity, Defendant.
CourtU.S. District Court — Southern District of California

Timothy Alan Horton, Latham and Watkins, San Diego, CA, for Plaintiff.

Adam S. Avratin, Plaintiff, in pro per.

Deputy Attorney General, Susan E. Coleman, Office of the California Attorney General, San Diego, CA, for Defendants.


SABRAW, District Judge.

This matter comes before the Court on Defendant's motion for summary judgment. Plaintiff filed an opposition to the motion, and Defendant filed a reply. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3, the motion was referred to a United States Magistrate Judge for a Report and Recommendation ("Report"). On September 28, 2005, Magistrate Judge Louisa S. Porter issued her Report, recommending that the Court deny Defendant's motion. Neither party filed objections to the Report.

After reviewing the Report, this Court scheduled oral argument on Defendant's motion, which was held on December 16, 2005. Timothy Horton, Esq. appeared on behalf of Plaintiff, and Susan Coleman, Esq. appeared on behalf of Defendants. For the reasons set out below, the Court rejects the Report, and grants Defendant's motion.


This district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report .. . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. When no objections are filed, the court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 201 (9th Cir.1974); Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal.2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514 1518 (9th Cir.1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.1996), (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983)).


This case arises out of a fight between two inmates on February 28, 1998, at Centinela State Prison. Plaintiff Adam Avratin, an inmate housed at Centinela, was involved in the fight. Defendant M. Bermudez, a correctional officer at the facility, intervened in the fight and used force to stop the disturbance. Defendant's use of force resulted in injuries to Plaintiff and is the subject of this action.

While on the Administrative Segregation exercise yard with numerous other inmates, Plaintiff engaged in a fistfight with inmate Williams. Williams approached Plaintiff while Plaintiff was involved in conversation with another inmate. Williams threw a "blind-side" punch, striking Plaintiff in the head. Plaintiff recovered quickly and a heated fight ensued, with both inmates on the ground wrestling and exchanging repeated blows. Defendant was providing coverage for the yard when the fight broke out; he was standing behind a fence that enclosed the yard. Defendant twice ordered the inmates to "get down" or "stop fighting," but Plaintiff and Williams did not comply. The numerous other inmates in the yard complied with orders and sat down.

During the fight, Defendant inserted a 37mm launcher into a gun port in the fence and fired a 264 W multiple wooden baton round toward Plaintiff and Williams. Defendant fired two rounds. While Defendant was firing his launcher, Correctional Officer Lee was firing pepper spray at the subject inmates from behind the fence. Despite the firing of the baton rounds and the pepper spray, the inmates continued fighting. Correctional Officer Brown, who was in the control tower above the yard, attempted to discharge his own baton launcher. The launcher misfired, however, and Officer Brown activated an alarm to alert other staff of the incident. After ejecting the misfired round and reloading his launcher, Officer Brown discharged a round toward the inmates.

After firing his second round, Defendant reloaded his launcher and moved to another gun port approximately eight to nine feet away from the inmates. From that port, Defendant fired another round toward the inmates.

Plaintiff and Williams eventually stopped fighting, laying in a prone position on the ground. The deployment of the wooden rounds and pepper spray did not immediately cause the inmates to stop fighting. A videotape captured the entire disturbance.

During the course of the incident, Plaintiff received abrasions to his shoulder, knee and chest, a deep wound on his right thigh, and swelling on his face.


Defendant raises two arguments in support of his motion for summary judgment. First, he argues Plaintiff has failed to establish Defendant violated his constitutional rights, and Plaintiff has failed to demonstrate causation. Second, Defendant asserts he is entitled to qualified immunity.

Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Claims of qualified immunity require a two-step analysis. First, the court must consider whether the facts alleged, taken in the light most favorable to the party asserting the injury, show the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the allegations do not establish the violation of a constitutional right, "there is no necessity for further inquiries concerning qualified immunity." Id. If the allegations could make out a constitutional violation, however, the court must then ask whether the right was clearly established—that is, whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. If an officer makes a reasonable mistake as to what the law requires, the officer is entitled to immunity. Id. at 205, 121 S.Ct. 2151.

A. Eighth Amendment Violation

Because Plaintiff was incarcerated at the time of the incident, his excessive force case is governed by the Eighth Amendment's Cruel and Unusual Punishments clause. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In Whitley, the Court defined the contours of an inmate's rights under the Eighth Amendment in a factual scenario similar to that presented in this case. There, a correctional officer shot a prisoner in the leg during a prison riot. Id. at 316, 106 S.Ct. 1078. In determining whether that conduct amounted to excessive force, the Court paid particular attention to the prison setting and the risks "unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used." Id. at 320, 106 S.Ct. 1078. The Court was also mindful of prison administrators' responsibility to avert those risks and to ensure "the safety of the prison staff, administrative personnel, and visitors, as well as the `obligation to take reasonable measures to guarantee the safety of the inmates themselves.'" Id. (quoting Hudson v. Palmer, 468 U.S. 517, 525-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

Ultimately, the Court set out a standard for excessive force that would "adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance." Id. That standard is as follows:

Where a prison security measure is undertaken to resolve a disturbance ... that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'

Id. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). In making that determination, the Court set out several factors to be considered, including: (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, (4) the extent of the threat to the safety of staff and inmates, and (5) any efforts made to temper the severity of a forceful response. Id. at 321, 106 S.Ct. 1078.

In this case, Plaintiff alleges Defendant fired his launcher directly at Plaintiff for the purpose of causing harm. In support of this allegation, Plaintiff relies on his own testimony that Defendant pointed the launcher through the fence and fired directly at him from three feet away, thus violating prison regulations that prohibit direct fire on inmate-combatants without ricocheting the round off the ground. After Defendant fired, Plaintiff contends he felt a wooden block strike him in the leg. Plaintiff claims that before the shooting, Defendant threatened to harm him, which proves Defendant's malicious intent. Plaintiff also contends he suffered a serious injury to his leg that continues to cause him pain and suffering.

Although Defendant disputes Plaintiffs allegations, in ruling on the first prong of the qualified...

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4 cases
  • Paschelke v. Hernandez, Case no. 09-CV-2657 W (WVG)
    • United States
    • U.S. District Court — Southern District of California
    • January 11, 2012
    ...even where the prisoner does not object. See Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001); Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D.Cal.2006); Cordeiro v. Hernandez, 2010 WL 364193 (S.D.Cal. 2010). These cases, however, are all rooted in the Ninth Circuit's deci......
  • Silva v. Barreras
    • United States
    • U.S. District Court — Southern District of California
    • April 2, 2012
    ...even where the prisoner does not object. See Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001); Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D.Cal. 2006); Cordeiro v. Hernandez, 2010 WL 364193 (S.D.Cal. 2010). These cases, however, are all rooted in the Ninth Circuit's dec......
  • Sneed v. Lira, 09-CV-2853 W (MDD)
    • United States
    • U.S. District Court — Southern District of California
    • January 11, 2012
    ...even where the prisoner does not object. See Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001); Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D.Cal. 2006); Cordeiro v. Hernandez, 2010 WL 364193 (S.D.Cal. 2010). These cases, however, are all rooted in the Ninth Circuit's dec......
  • United Levao v. Lewis, Case no. 10-CV-1040 W (NLS)
    • United States
    • U.S. District Court — Southern District of California
    • January 17, 2012
    ...where a party does not object to the report. See Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001); Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D. Cal. 2006); Cordeiro v. Hernandez, 2010 WL 364193 (S.D. Cal. 2010). These cases are all rooted in the Ninth Circuit's decisi......

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