Dennis v. Thurman
| Decision Date | 12 March 1997 |
| Docket Number | No. CV 94-5337-CBM(RC).,CV 94-5337-CBM(RC). |
| Citation | 959 F.Supp. 1253 |
| Court | U.S. District Court — Central District of California |
| Parties | Alvin C. DENNIS, Plaintiff, v. Warden Otis THURMAN; Associate Wardens R. Morris; L. Hood, M. Yarborough; Correctional Captain G. Mellot; Program Administrator A.H. Amero; California Correctional Peace Officers Ltd. D.K. Downs; Sgts E. Buelna, J. Austin, J. Selle, Officers G. Hernandez, D. Gaunt, E. Serrano, R. Leyvas, K. Large; R. Martinez; A. Sylva; P. Tome, D. Turner, R. Henderson, D. Meeker, R. Judkins, L. Craig, J. Maloy, D. Franklin, P. Smith, H. Huerta, R. Mira, R.C. Stivas, J. Cox, M. Webb, E. Rubbio, R. Lopez, California Department of Corrections Physicians Doctors, Dr. Johnson; B. Shima; J. DeCastro, Defendants. |
Alvin C. Dennis, pro se.
Anthony Da Silva California Office of the Attorney General, San Diego, CA, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Complaint and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) summary judgment is granted for defendants on all of plaintiff's federal claims, and Judgment shall be entered accordingly; and (3) this Court declines to exercise jurisdiction over the pendent state law claims, and they are accordingly dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.
CHAPMAN, United State Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On August 5, 1994, plaintiff Alvin C. Dennis, a state prisoner proceeding pro se and in forma pauperis, filed his original complaint. On July 14, 1995, he filed an unverified Second Amended Complaint ("SAC") under 42 U.S.C. §§ 1981, 1983 and 1985(3) against thirty-six prison officials, correctional officers and physicians at California State Prison-Los Angeles County in Lancaster, California ("prison"). The plaintiff's claims stem from events on February 2, 1994, when plaintiff was forcibly extracted from his prison cell, and the subsequent medical treatment he received for injuries suffered during the cell extraction. The plaintiff specifically claims his rights under the Fourth,1 Eighth and Fourteenth Amendments, as well as under 42 U.S.C. § 1981, 1983 and 1985(3), were violated when he was deprived of water for 36 hours, when force was used to extract him from his cell, and when he received inadequate and untimely medical care for the injuries he suffered during the cell extraction. (SAC, ¶¶ 30-32). The plaintiff further brings state law claims for battery, negligence, and violation of the California Unruh Civil Rights Act (Cal. Civ. Code §§ 51 and 52). The plaintiff seeks compensatory damages of $100,000.00 from each defendant and punitive damages in an undetermined amount.
Defendants Morris, Amero, Downs, Buelna, and Austin filed an answer to the initial complaint on November 30, 1994. Defendants Hood, Yarborough, Serrano, Leyvas, Large, Sylva, Turner, Henderson, Meeker, Judkins, Craig, Maloy, Franklin, Smith, Huerta, Mira, Cox, Webb, Rubbio, Lopez, Shima and DeCastro filed an answer to the Second Amended Complaint on November 27, 1995.2
On June 25, 1996, answering defendants and defendant Selle (who did not answer) filed a motion for summary judgment.3 The plaintiff was given notice of the requirements to respond to a motion for summary judgment under Fed.R.Civ.P. 56. Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). The plaintiff filed only his own affidavit in opposition to defendants' motion for summary judgment. The defendants did not file a reply.
The summary judgment documents show the following facts: On February 1, 1994, defendant Downs received information of a plan by inmates in the administrative segregation unit of the prison to stab a correctional officer with "weapons which were manufactured from the metal support frame of a stolen dust mop." (Defendants' Motion for Summary Judgment, Declaration of Darrell K. Downs ("Downs Decl."), ¶ 2); Declaration of Rufus Morris ("Morris Decl."), ¶ 2). A preliminary search of some inmates and their cells in the administrative segregation unit was conducted on February 1, 1994, and weapons were, in fact, discovered. (Id., Morris Decl., ¶ 2; Declaration of Sgt. Ernie Buelna ("Buelna Decl."), ¶ 2).
Defendant Morris became concerned that "inmates still possessed outstanding weapons," and, thus, received approval from the Chief Deputy Warden for a search of all cells in the administrative segregation unit of the prison, including plaintiff's cell. (Id., Morris Decl., ¶ 3). That search was to be conducted the next day, on February 2, 1994. (Id., Morris Decl., ¶ 4; Downs Decl., ¶ 3). Cell extraction teams were formed to facilitate a "thorough and timely search" of the unit. Id., Morris Decl., ¶ 3; Buelna Decl., ¶ 4). As further preparation for the cell extractions, the water supply was turned off to inmates' cells to "prevent inmates from flooding their cells." (Id., Downs Decl., ¶ 5). Inmates were provided with liquids with every meal during the 36 hour period the water was turned off. (Id.).
Every inmate was given several opportunities to voluntarily exit his cell. (Id., Downs Decl., ¶ 3). Defendant Downs went to each cell prior to the extraction and gave several verbal warnings ordering the inmates to peacefully exit their cells and to allow the staff to search for weapons. (Id.). "Many inmates expressed defiance to the staff's request to peacefully exit their cells and refused to allow the staff to search their persons or cells." (Id., Downs Decl., ¶ 4). These inmates "barricaded themselves with state-issued mattresses, clothing, and books." (Id.).
The plaintiff refused several orders from defendant Downs to voluntarily be placed in handcuffs and to permit a search of his person and cell and "blockaded himself in the cell behind a mattress." (Id., Downs Decl., ¶ 7; Buelna Decl., ¶ 5). When plaintiff's cell door was opened, plaintiff began to move around in his cell. (Id., Buelna Decl., ¶ 5). Defendant Buelna had a 37 mm gas gun, which he fired after plaintiff's cell door was open "at the floor in order to ricochet the bullets"; he did not shoot directly at plaintiff. (Id., Buelna Decl., ¶ 5). Members of the cell extraction team then entered plaintiff's cell and restrained him. (Id., Downs Decl., ¶ 7).
Shortly after the plaintiff was removed from his cell, he was examined by medical personnel. (Id., Downs Decl., ¶¶ 6, 7; Buelna Decl., ¶ 5). The plaintiff suffered a gunshot wound to his left leg, which fractured the leg. (Id., Declaration of B. Shima, M.D. ("Shima Decl."), ¶ 2; Exhs. 4, 5). He was treated at the Antelope Valley Hospital Medical Center. (Id.) The plaintiff's injury to his leg subsequently was treated again on March 22, May 3, June 22, September 7 and October 19, 1994. (Shima Decl., ¶ 3.) The x-rays taken on October 19, 1994, showed that the fracture was healing, there was stable alignment, and no pain was elicited for plaintiff. (Id., ¶ 4).
Following the cell extraction, plaintiff was charged with violation of Title 15, California Code of Regulations, Section 3005(c), for participating in a mass disturbance in the administrative segregation unit. (Id., Downs Decl., ¶ 8; Exh. 2, Rules Violation Report). The plaintiff was charged as follows:
On Wednesday, 02-02-94 ... officers approached your cell instructing you to exit [and] you refused to comply with the order. Based upon your refusal, it was necessary to extract you from the cell.... Your active participation in this disturbance jeopardized the safety and security of the institution.
(Id., Exh. 2, Rules Violation Report). At a hearing on the charge, the plaintiff was found "guilty," and assessed 90 days loss of credit for a Division "D" offense. (Id.; Downs Decl., ¶ 8).
Fed.R.Civ.P. 56(c) authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. Judgment must be entered judgment should not be entered in favor of the moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence, which the moving party "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.19...
To continue reading
Request your trial
-
John Doe v. State of Hawaii Dept. of Educ.
...Alan Wright, Arthur R. Miller & Mary Kay Kane, 6 Federal Practice & Procedure § 1476, 558-59 (1990)), cited in Dennis v. Thurman, 959 F.Supp. 1253, 1257 n. 2 (C.D.Cal.1997). Second, as to Defendant Keala's official capacity, as discussed infra, it is clearly established that an official cap......
-
Adams v. Kraft
...that employee's public-entity employer. See Briggs v. Lawrence, 230 Cal. App. 3d 605, 612-13 (1991); see also Dennis v. Thurman, 959 F. Supp. 1253, 1264 (C.D. Cal. 1997) ("When defendants are public employees, the plaintiff must first submit a written claim to the public entity that employs......
-
Thompson v. Opoku
...racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Dennis v. Thurman, 959 F. Supp. 1253, 1263 (C.D. Cal. 1997) quoting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993) (quoting Griffin v. Breckenridge, 403 U.S. 88......
-
Zochlinski v. Regents of the Univ. of Cal.
...some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the [official's] action." Dennis v. Thurman, 959 F. Supp. 1253 (C.D. Cal. 1997) (internal punctuation and citations omitted). a. Jones Defendants assert that the first amended complaint fails to establis......