Wilkerson v. Wheeler

• Decision Date: 18 November 2014
• Docket Number: No. 11–17911.,11–17911.
• Citation: 772 F.3d 834
• Parties: J.R. WILKERSON, aka Adonai El–Shaddai, aka James Wilkerson, Plaintiff–Appellant, v. B. WHEELER ; N. Albonico; D.L. Thompson ; G. Turner, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

772 F.3d 834

J.R. WILKERSON, aka Adonai El–Shaddai, aka James Wilkerson, Plaintiff–Appellant

v.B. WHEELER ; N. Albonico; D.L. Thompson ; G. Turner, Defendants–Appellees.

No. 11–17911.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 2014.

Filed Nov. 18, 2014.

Su–Han Wang(argued), Mark R.S. Foster, and Samuel S. Song, Morrison & Foerster LLP, San Francisco, CA, for Plaintiff–AppellantAdonai El–Shaddai.

Jaime M. Ganson(argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Jonathan L. Wolff, Senior Assistant Attorney General; and Thomas S. Patterson, Supervising Deputy Attorney General, Sacramento, CA, for Defendants–AppelleesB. Wheeler, N. Albonico, and G. Turner.

Appeal from the United States District Court for the Eastern District of California, Kimberly J. Mueller, District Judge, Presiding.D.C.No. 2:06–cv–01898–KJM–EFB.

Before: STEPHEN REINHARDT, RONALD M. GOULD, and MARSHA S. BERZON, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Adonai El–Shaddai¹(“El–Shaddai”) alleges that correctional officers used excessive force in restraining him while he was incarcerated at High Desert State Prison in California.El–Shaddai sued the officers and the prison librarian under 42 U.S.C. § 1983, claiming that they violated his federal constitutional rights.Defendants prevailed at trial.El–Shaddai appeals, contending that: (1)the district court erred by instructing the jury that it was established that El–Shaddai resisted the correctional officers; (2)the district court abused its discretion in excluding certain witnesses and evidence; (3) the failure to appoint counsel for El–Shaddai was an abuse of discretion; and (4) the order granting summary judgment to Sergeant Turner, one of the correctional officers, for El–Shaddai's failure to exhaust administrative remedies was error.²We have jurisdiction under 28 U.S.C. § 1291.Because the district court erred in granting summary judgment to Turner, and because the jury instructions were misleading, we reverse the award of summary judgment to Turner, vacate the judgment as to the other officers, and remand for a new trial.Because we vacate the judgment on the basis that the jury instructions were improper, we do not reach any of El–Shaddai's other arguments.

I

El–Shaddai alleges that while incarcerated at High Desert State Prison in California, three prison guards used excessive force to restrain him.According to El–Shaddai, he was in the prison law library under the escort of two guards, Officer Bobby Wheeler(“Wheeler”) and Lieutenant Nickolus Albonico(“Albonico”).El–Shaddai gave his legal documents to the prison librarian to copy.When Wheeler and Albonico attempted to bring El–Shaddai back to his cell, El–Shaddai said that he would not leave without his documents and that he needed to use a stapler located in another office, and began to walk away from the officers.The officers viewed this as resistance, and tackled and restrained El–Shaddai.A third officer, Sergeant Gary Turner(“Turner”), assisted in restraining El–Shaddai.The officers testified that, while restrained, El–Shaddai kicked and twisted.During the struggle, El–Shaddai yelled that his leg was broken.As a result of this incident, El–Shaddai received a Prison Disciplinary Rules Violation Report for willfully resisting an officer, and was found guilty in a prison disciplinary hearing.The outcome of the hearing was upheld in state habeas corpus proceedings.

El–Shaddai filed suit against the three correctional officers and the prison librarian.On June 7, 2007, defendants filed a motion to dismiss, arguing that El–Shaddai failed to exhaust his administrative remedies.The magistrate judge construed the motion as one for summary judgment, and, on February 12, 2008, recommended that the motion be granted as to Turner, based on the contents of El–Shaddai's prison grievance.The district court adopted the magistrate judge's recommendations in their entirety.El–Shaddai's grievance had stated that he suffered injuries “[a]s a result of the assault on my person by C/O Wheeler and C/O Albonico and responding officers.”He specifically identifies Turner as a responding officer, saying that Turner aided the other officers by “continuing to apply pressure on [El–Shaddai's] ankle despite [his] screams of pain.”In records from the grievance and prison discipline process, El–Shaddai says that Turner “assisted C/O Albonico in taking control of [his] feet” and “maintained control of [his] legs utilizing [his] hands and lower leg to apply pressure to knowingly and deliberately inflict pain with full knowledge that [El–Shaddai] was in pain”.The district court held that the grievance did not suggest that officers other than Wheeler and Albonico joined in the alleged abuse, thereby failing to put Turner and the librarian on notice of their need to defend against El–Shaddai's claims.

After the case was set for trial, El–Shaddai filed a motion requesting appointment of counsel on the grounds that he was an indigent prisoner and his incarcerated status made it difficult or impossible to locate or compel testimony from witnesses who were incarcerated in other facilities.The magistrate judge denied the motion, stating that no exceptional circumstances warranting a request for volunteer counsel existed in this case.El–Shaddai raised similar concerns shortly before trial about his ability to locate and subpoena incarcerated witnesses, in a request that the district court construed as a motion for appointment of counsel.It found that these circumstances warranted appointment of counsel if volunteer counsel were available, but no such counsel came forward.

During pre-trial proceedings, the district court excluded several of El–Shaddai's incarcerated witnesses, as well as certain documents on which El–Shaddai wanted to rely, from use at trial.

After the evidence was in, the judge instructed the jury that “[i]t is established that plaintiff resisted defendant Wheeler, and that plaintiff was disciplined by prison officials for that resistance.Plaintiff does not seek to expunge that disciplinary record and you are directed to assume that disciplinary record will remain unchanged.”The court gave this instruction after defendants made a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50, arguing that a jury finding of excessive force would undermine the prison disciplinary decision and thereby violate Heck v. Humphrey,512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383(1994).Although the district court declined to take the case away from the jury, it agreed to the instruction.The instruction was refined after objections from defense counsel, who were concerned that it potentially violated Simpson v. Thomas,528 F.3d 685(9th Cir.2008), which holds that Heck may not be used to exclude relevant evidence.The dispute on the instruction was resolved by stating that El–Shaddai was found guilty of “resisting” without specifying the conduct in the prison disciplinary report, and without highlighting any inconsistencies between El–Shaddai's testimony and that report.

The jury returned a verdict in favor of defendants on all claims.El–Shaddai filed a timely notice of appeal, and this appeal followed.

II

We review questions of law related to exhaustion de novo, but we accept the judge's factual findings on disputed issues of material fact absent clear error.Albino v. Baca,747 F.3d 1162, 1171(9th Cir.2014)(en banc).

We review a district court's denial of counsel to indigent civil plaintiffs under 28 U.S.C. § 1915 for an abuse of discretion.Wilborn v. Escalderon,789 F.2d 1328, 1331(9th Cir.1986).

Evidentiary rulings are reviewed for abuse of discretion.Engquist v. Or. Dep't of Agric.,478 F.3d 985, 1008(9th Cir.2007).Errors will only support reversal if the error was prejudicial, or in the civil context, “more probably than not tainted the verdict.”Id. at 1009.

We review a district court's formulation of civil jury instructions for an abuse of discretion, but we consider de novo whether the challenged instruction correctly states the law.“Jury instructions must be supported by the evidence, fairly and adequately cover the issues presented, correctly state the law, and not be misleading.”Peralta v. Dillard,744 F.3d 1076, 1082(9th Cir.2014)(en banc).But if any error relating to the jury instructions was harmless, we do not reverse.“In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was not fairly and correctly covered.Harmless error review for a civil jury trial ... shifts [the burden] to the defendant to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed.”Gantt v. City of L.A.,717 F.3d 702, 707(9th Cir.2013)(internal quotation marks, citations, and alterations omitted).

III

A.Granting Summary Judgment to Turner Was Error

At the outset, we reject the government's argument that El–Shaddai waived his right to appeal the magistrate's findings on exhaustion because El–Shaddai did not specifically object to them.³“[P]arties who do not object to a magistrate's report waive their right to challenge the magistrate's factual findings but retain their right to appeal the magistrate's conclusions of law.”Baxter v. Sullivan,923 F.2d 1391, 1394(9th Cir.1991).Here, El–Shaddai does not challenge the magistrate's factual findings on whether he filed the grievance or its contents.Rather, he challenges the legal conclusion as to whether the grievance gave adequate notice with regard to Turner, which we review de novo.SeeJosephs v. Pac. Bell,443 F.3d 1050, 1061(9th Cir.2006);cf.Vinieratos v. U.S., Dep't of Air Force Through Aldridge,939 F.2d 762, 768(9th Cir.1991).The question of whether the district court erred in granting summary judgment in favor of Turner is properly before us.

As...