Draper v. Rosario

• Decision Date: 07 September 2016
• Docket Number: No. 14-16340,14-16340
• Citation: 836 F.3d 1072
• Parties: John Clint Draper, Plaintiff–Appellant, v. D. Rosario, Officer; E. Rogers, Lieutenant, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

836 F.3d 1072

John Clint Draper, Plaintiff–Appellant,

v.D. Rosario, Officer; E. Rogers, Lieutenant, Defendants–Appellees.

No. 14-16340

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2016 San Francisco, California

Filed September 7, 2016

Matthew Guarnieri (argued) and Paul R.Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Plaintiff–Appellant.

Suzanne Antley (argued), Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Diego, California, for Defendant–Appellee D. Rosario.

Before: Kim McLane Wardlaw, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Bea

OPINION

PAEZ

, Circuit Judge:

In this prisoner civil rights action, plaintiff John Clint Draper (“Draper”) alleged a violation of his Eighth Amendment right to be free from cruel and unusual punishment stemming from a physical altercation with defendant Officer David Rosario (“Rosario”). Draper also alleged that in the administrative disciplinary proceeding that followed the altercation, the presiding officer, defendant Lieutenant E. Rogers (“Rogers”), deprived him of a fair hearing in violation of his Fourteenth Amendment procedural due process rights. The district court dismissed the due process claim for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”). 42 U.S.C. § 1997e(a)

. The Eighth Amendment claim was tried before a jury, which returned a verdict in favor of Rosario. On appeal, Draper argues that the district court erred in dismissing his procedural due process claim and in excluding the testimony of a certain prisoner who allegedly witnessed the altercation. He also argues that the district court erred in allowing opposing counsel to make improper statements during closing argument. Finally, Draper appeals the district court's order taxing costs totaling $3,018.35.

We affirm the district court's dismissal of Draper's procedural due process claim and the court's evidentiary rulings. We conclude that defense counsel improperly vouched for the credibility of correctional officer witnesses during closing argument, but on plain error review, the district court's failure to correct the error sua sponte does not warrant reversal. Finally, we hold that the district court abused its discretion in awarding $3,018.35 in costs. We therefore affirm in part, vacate the award of costs, and remand.

I.

At the time of the altercation, Draper was a 61–year–old prisoner housed at the California State Prison in Solano (“C.S.P.-Solano”). He was considered mobility impaired and used a cane to walk. He was assigned to work as a porter in the prison, where his job was to clean tables in Building Four. On September 9, 2009, Rosario accused Draper of not cleaning the tables and ordered him to report to the correctional officers' office. Draper complied, and while he stood outside the office, the two had a conversation about whether Draper had performed his porter duties. Draper became upset, swore at Rosario, and accused him of lying. Rosario claimed that Draper then stepped into the office across a red line delineating an area that prisoners could not enter without permission, and that he told Draper to step back, which Draper did. Draper disputes that he ever stepped over the red line. Rosario then ordered Draper to drop his cane and to put his hands behind his back. Draper complied, and Rosario placed him in handcuffs.

What happened next is disputed.¹ Draper testified that Rosario suddenly slammed him against the sally port gate that leads out of Building Four. Draper explained that he put a foot out to try to stop himself from “hitting the grill gate with full force” but that he still “hit the grill gate hard.” Draper testified that the force of Rosario slamming him against the gate caused him to bounce off and fall to the ground, and that Rosario “jumped down in the middle of [Draper's] back” with his knee, pushing his full body weight into Draper. He explained that Rosario then twisted Draper's arm behind his back, and he “heard the bone pop.” Draper testified that Rosario then slammed his head against the concrete and that Draper eventually heard someone say, “Get off of him.”

Rosario's version of events is quite different. He testified that as he reached for his radio to notify the yard staff that he would be leading an inmate out of the building, Draper unexpectedly “placed his foot on the grill gate, and lunged his body back towards” Rosario. Rosario explained that, while keeping his hands on Draper, he moved out of the way as Draper fell to the ground. He then held Draper down until other officers arrived a few minutes later. Aside from holding Draper down, Rosario denied using any force.

Later that day, Rosario wrote a rules violation report charging Draper with assault on a peace officer. Another staff member, Rogers, ultimately conducted a hearing on the rules violation charge and found Draper guilty. Draper filed several grievances related to these events, including one that accused Rogers of having determined his guilt before the hearing. Draper did not, however, complete the three levels of the administrative appeal process for the grievance against Rogers.²

Draper filed a pro se complaint in district court pursuant to 42 U.S.C. § 1983

, alleging violations of his Eighth and Fourteenth Amendment rights by Rosario, Rogers, and several other defendants (“Defendants”).³ The district court granted Draper in forma pauperis status. After the district court screened the complaint and found that it stated cognizable claims, the court ordered Defendants to respond. Defendants moved to dismiss all claims. Relevant to this appeal, Defendants argued that Draper had failed to exhaust his claim against Rogers through the prison grievance process. The district court dismissed Draper's due process claim for failure to exhaust his administrative remedies but declined to dismiss the Eighth Amendment claim against Rosario. Rosario moved for summary judgment, which the district court denied, finding that there were triable issues of fact. The court also appointed pro bono counsel to represent Draper at trial.

Draper proceeded to trial on his claim that Rosario had violated his Eighth Amendment right to be free from excessive force. See, e.g. , Hudson v. McMillian , 503 U.S. 1, 6–7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)

. Prior to trial, Draper requested that three prisoner eyewitnesses be allowed to testify. The district court issued writs of habeas corpus ad testificandum for two witnesses, Mario Thompson and John Doe.⁴ The court denied Draper's request with respect to the third witness, Richard Shepard, because Shepard had been transferred to a different prison and would be more difficult to transport to trial. All three witnesses had observed the altercation between Draper and Rosario and were prepared to testify that Rosario had slammed Draper against the sally port gate and onto the prison floor while Draper was handcuffed. Shortly before trial was scheduled to begin, Doe contacted Draper's counsel to inform him “that he had received an explicit threat to his life from other inmates if he were to testify at trial.” The inmates had told him that it was against the rules to “snitch,” and counsel believed the threats to be racially motivated. The district court vacated the writ of habeas corpus ad testificandum for Doe and issued a writ for Shepard to testify in Doe's place.

At trial, Draper testified to his version of events, which was supported by the testimony of the two prisoner eyewitnesses (Thompson and Shepard). A third prisoner testified about his own similar prior altercation with Rosario. In addition, a medical expert witness and Draper's investigator both testified. For the defense, Rosario testified, as did Officers Eddie Colter and Pyong Lee, who generally corroborated Rosario's account. The Chief Medical Officer of the California Department of Corrections and Rehabilitation (“CDCR”) also testified for the defense regarding Draper's injuries as documented in his prison medical records.

The parties' closing arguments focused on convincing the jury of which version of events was most credible. Rosario's attorney argued that the correctional officer witnesses had “everything to lose” by committing perjury, “in contrast to the inmate witnesses you heard.” He explained that “Draper and his inmate witnesses have little, if anything, to lose by committing perjury because they are already in prison,” whereas “Colter and Lee, both honorably discharged from military service before their long service with the CDCR, have much to lose. A conviction for perjury would end Lee's career [and] ... could possibly result in a prison term for both of them.” Draper's attorney did not object to these statements, nor did he request a curative instruction.

The jury returned a verdict in favor of Rosario, and the district court entered judgment. Rosario filed an application to tax costs, which Draper opposed. The district court ultimately awarded $3,018.35 in costs against Draper. Draper timely appealed.

II.

A.

The PLRA requires prisoners to exhaust available administrative remedies prior to filing a § 1983

lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a) ; Porter v. Nussle , 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We review de novo a district court's dismissal for failure to exhaust. Williams v. Paramo , 775 F.3d 1182, 1191 (9th Cir. 2015).

Prisoners need only exhaust “available” administrative remedies; remedies are not considered “available” if, for example, prison officials do not provide the required forms to the prisoner or if officials threaten retaliation for filing a grievance. See McBride v. Lopez , 807 F.3d 982, 987 (9th Cir. 2015)

; Albino v. Baca , ...