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Roshone v. Jost

United States District Court, Ninth Circuit

September 3, 2013

ANDREW PAUL ROSHONE, Plaintiff,
v.
THOMAS JOST et al., Defendants.

FINDINGS AND RECOMMENDATION

PAUL PAPAK, Magistrate Judge.

Incarcerated plaintiff Andrew Paul Roshone filed this action pro se against Thomas Jost, Jeff Moura, Alvie Barton, Erik Estrada, Joey Olive, and John Doe on November 1, 2011. In his complaint, Roshone alleges that defendants are liable under 42 U.S.C. § 1983 for violating Roshone's civil rights arising under the Eighth Amendment to the United States Constitution. Specifically, under Claim I, Roshone alleges that defendants Barton, Estrada, Olive, and John Doe used excessive force. Under Claim II, Roshone alleges that defendants Jost and Moura were deliberately indifferent to the use of excessive force. Finally, under Claim III, Roshone alleges that medical staff were deliberately indifferent to his medical needs. This court has federal-question jurisdiction over Roshone's federal claims pursuant to 28 U.S.C. § 1331.

Now before the court is defendants' motion for summary judgment and motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (#52).[1] I have considered the motions, supporting declarations and exhibits, and all of the pleadings on file. For the reasons set forth below, defendants' motion to dismiss should be granted and defendants' motion for summary judgment should be denied.

LEGAL STANDARDS

I. Motion for Summary Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990).

II. Motion to Dismiss for Failure to Exhaust Administrative Remedies

Under the Prison Litigation Reform Act ("PLRA"), incarcerated plaintiffs are required to exhaust all administrative remedies available to them within the institutions in which they are housed before bringing any federal action in connection with prison conditions, including such actions brought under 42 U.S.C. § 1983:

No action shall be brought with respect to prison conditions under section 1983 of this title, 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). For purposes of the PLRA, actions brought with respect to "prison conditions" include all actions brought to challenge isolated episodes of unconstitutional or otherwise unlawful misconduct of any kind as well as prisoner petitions challenging conditions of confinement. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Under the PLRA, the courts lack discretion to consider claims challenging prison conditions, including claims for money damages, except where such claims are filed following complete exhaustion of available administrative remedies, without regard to the nature of the available administrative remedies and without regard to the types of remedies available under such administrative grievance procedures. See id at 524, citing Booth v. Churner, 532 U.S. 731, 739, 740 n.5, 741 (2001).

Inmates are not required to plead or demonstrate exhaustion before bringing prison-conditions lawsuits. Jones v. Bock, 549 U.S. 199, 216 (2007). To the contrary, an incarcerated plaintiffs failure to satisfy the PLRA exhaustion requirement is an affirmative defense that is the burden of the defendant in a prison-conditions lawsuit to raise and prove. See id. The courts of the Ninth Circuit treat failure to exhaust administrative remedies "as a matter in abatement, ... subject to an unenumerated Rule 12(b) motion" to dismiss. Wyatt, 315 F.3d at 1119. In deciding an unenumerated Federal Rule of Civil Procedure 12(b) motion to dismiss for failure to exhaust available administrative remedies, "the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id.

The PLRA exhaustion requirement is applicable to all persons who are incarcerated at the time they file their civil actions, without regard to whether they may subsequently be released from custody prior to resolution of their claims. See Cox v. Mayer, 332 F.3d 422, 424-28 (6th Cir. 2003); see also Talamantes v. Leyva, 575 F.3d 1021, 1023-24 (9th Cir. 2009).

FACTUAL BACKGROUND

I. Parties

Roshone was admitted to the custody of the Oregon Department of Conections ("ODOC") on January 26, 2010, and was housed at the Snake River Corr-ectional Institution ("SRCI") from Februmy 24, 2010, through November 23, 2012. Decl. of James R. Taylor ("Taylor Decl."), #60, ¶ 3.

Thomas Jost is a Correctional Captain at SRCI. Decl. of Thomas Jost ("Jost Decl."), #55, ¶1. Jeff Moura is a Conectional Sergeant at SRCI. Decl. of Jeff Moura ("Moura Decl."), #59, ¶1. Alvie Barton, Erik Estrada, and Joey Olive are Conectional Officers at SRCI. Decl. of Alvie Bmion ("Barton Decl."), #57, ¶ 1; Decl. of Erik Estrada ("Estrada Decl."), #58, ¶ 1; Decl. ofJoey Olive ("Olive Decl."), #56, ¶ 1.

II. DSU Safety Protocol

SRCI has a Disciplinary Segregation Unit ("DSU"), which houses "dangerous inmates with a history of aggressive behavior and ODOC rule violations." Decl. of James Eastwood ("Eastwood Decl."), #54, ¶ 7. Because of the population housed in DSU, there are heightened safety measures in place. Id. For instance, when an inmate is esc01ied in DSU, safety protocols dictate that there must be two officers present before the inmate's cell door is opened, the inmate must be placed in wrist restraints, and the "officers must have their hands on the inmate's arms at all times." Id. ¶¶ 8-11. "During an escort through DSU, inmates are told to keep their heads and eyes straight forward and not to engage with escorting officers." Id. ¶ 12. If an inmate turns to an officer during an escort through DSU, it is considered aggressive behavior because it "gives the inmate the opportunity to headbutt, kick, or spit on the escorting officers." Id. ¶¶ 12-13. If an inmate exhibits aggressive behavior, officers may use reactive force. Id. ¶ 14. If an officer uses reactive force during an escort, the inmate is taken to DSU's intake center, placed in a wall restraint, subjected to an unclothed search, and then given new clothes and a medical evaluation. Id . ¶ 15.

III. Defendants' Account

On August 11, 2010, Barton and Estrada were assigned to escort Roshone from DSU Housing Unit B to DSU Housing Unit A. Barton Decl., #57, ¶ 3; Estrada Decl., #58, ¶ 4. As Bmion approached Roshone to begin the escort, Roshone pulled away and lunged at Barton. Barton Decl., #57, ¶ 4; Estrada Decl., #58, ¶ 5. Barton and Estrada placed "Roshone on the floor to control his combative behavior." Barton Decl., #57, ¶ 6; Estrada Decl., #58, ¶ 7. After Barton and Estrada took Roshone to the floor, Roshone continued to resist. Barton Decl., #57, ¶ 7; Estrada Decl., #58, ¶ 8; Olive Decl., #56, ¶ 4. Olive and Moura responded to the scene after Roshone was already on the floor. Olive Decl., #56, ¶¶ 4-5; Moura Decl., #59, ¶ 5. Olive assisted in controlling Roshone by holding Roshone's legs. Olive Decl., #56, ¶ 5. Meanwhile, Moura retrieved leg restraints from the Special Housing Unit and passed them to Estrada. Moura Decl., #59, ¶ 6. Roshone continued to resist while Olive and Estrada applied the leg restraints. Id. ¶ 7. After Olive and Estrada applied the leg restraints, Moura and Olive escmied Roshone to DSU's intake center. Olive Decl., #56, ¶ 6; Moura Decl., #59, ¶ 8.

None of the officers involved saw any injuries on Roshone. Barton Decl., #57, ¶ 9; Estrada Decl., #58, ¶ 10; Olive Decl., #56, ¶ 7; Moura Decl., #59, ¶ 9. Each of the officers declared that he did not touch Roshone with the intent to harm or offend him. Barton Decl., #57, ¶ 10; Estrada Decl., #58, ¶ 11; Olive Decl., #56, ¶ 8; Moura Decl., #59, ¶ 10. Jost did not participate in the escort. Jost Decl., #55, ¶ 5.

IV. Roshone's Account

On August 11, 2010, Roshone was housed in DSU Housing Unit B. Roshone Decl., #77, ¶ 4. On that date, Roshone was notified that he was being moved to a different housing unit. Id. ¶ 5. Roshone was placed in a holding cell to wait for his cell in DSU Housing Unit B to be cleaned out. Id. ¶ 6; Complaint, #2, at 3.[2] Estrada came to the holding cell, placed Roshone in handcuffs, and removed Roshone from the holding cell. Roshone Decl., #77, ¶ 7; Complaint, #2, at 3.

While Estrada escorted Roshone to Roshone's new cell, Barton, who was escorting another inmate, walked by Roshone and Estrada and said, "This works good for me, I just trade one sex offender for another." Roshone Decl., #77, ¶¶ 7-8; accord Complaint, #2, at 3. Roshone continued to walk for a few steps but then stopped. Roshone Decl., #77, ¶ 9; Complaint, #2, at 3. At the time, Estrada was not holding onto Roshone, and so Roshone turned around and walked in the direction Barton was headed. Roshone Decl., #77, ¶ 10; Complaint, #2, at 3. After Roshone began walking away, Estrada grabbed Roshone's mm. Roshone Decl., #77, ¶ 11. Roshone then called Bmion's name. Id. ; Complaint, #2, at 3. Barton came out of an office and began quickly moving toward Roshone while ordering Roshone to go to Roshone's housing unit. Roshone Decl., #77, ¶ 12; Complaint, #2, at 3. Roshone attempted to move to comply with Barton's directive, but Estrada held Roshone's arm, forcing him to stay in place. Roshone Decl., #77, ¶13. When Barton approached Roshone, he grabbed Roshone's arm, swung Roshone around and tried to kick Roshone's legs out from under him. Id. ¶ 14; Complaint, #2, at 3. Barton failed on his first attempt but successfully forced Roshone to the ground on the second. Roshone Decl., #77, ¶ 15. Roshone landed on the side of his forehead and was rendered unconscious for "a short period." Id. When Roshone regained consciousness, Barton, Olive, Estrada, and an officer identified only as "Mauney" were ...


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