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Harbert v. Miller

United States District Court, D. Oregon, Pendleton Division

August 8, 2019

MS. M. MILLER, Correctional Officer; LT. C. BAUER; LT. R. A. YOUNG; SGT. W. COCHELL; C/O ROLAN; and CPL. JEMMETT, Defendants.


          Youlee Yim You United States Magistrate Judge

         Pro se plaintiff, Nathaniel F. Harbert, an inmate in the custody of Two Rivers Correctional Institution (“TRCI”), alleges a civil rights action under 42 U.S.C. § 1983 against prison staff defendants, C/O Marrisa Miller, Lt. Cameron Bauer, Lt. Richard Young, Sgt. William Cochell, Officer Cody Rolan, and Cpl. Trent Jemmett. Plaintiff alleges that defendants subjected him to cruel and unusual punishment and acted with deliberate indifference in violation of the Eighth Amendment while performing a cell extraction on September 23, 2017, by (1) using excessive force, (2) failing to intervene to protect him from the use of excessive force, and (3) failing to properly train correctional officers, which resulted in alleged injuries. Compl., ECF #2. Defendants have filed a motion for summary judgment. ECF #36. For the reasons discussed below, the motion is GRANTED.


         Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FRCP 56(e)).

         In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Cason City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134.

         Pro se pleadings are “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This rule protects the rights of pro se litigants to self-representation and meaningful access to the courts, . . . and is particularly important in civil rights cases.” Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir. 2012) (citations and quotation marks omitted).


         I. Exhaustion Defense Waived

         The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, requires pre-litigation exhaustion and mandates dismissal “when there is no presuit exhaustion, even if there is exhaustion while suit is pending.” Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (emphasis in original) (citation and quotation marks). Since its conception, the PLRA has strengthened the exhaustion requirement such that “[e]xhaustion is no longer left to the discretion of the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citation omitted). “[F]ailure to exhaust administrative remedies is an affirmative defense that the defendant must plead and prove in a PLRA case.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014). It is the defendant's burden “to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172 (citation omitted).

         Plaintiff alleges that he filed a grievance with TRCI, but neither party has provided evidence regarding the grievance procedures or any grievance filed by plaintiff. Although exhaustion of administrative remedies is mandatory for prisoners challenging prison conditions, exhaustion must be pleaded and proven as an affirmative defense by the defendant. See Albino, 747 F.3d at 1176. Although defendants asserted the PLRA as an affirmative defense in their Answer (ECF #12), they failed to assert it in their motion for summary judgment (ECF #36). Therefore, defendants have waived this defense.

         II. Eighth Amendment Claims

         A. Excessive Force

         The Eighth Amendment requires prison officials to provide humane conditions of confinement, Farmer v. Brennan, 511 U.S. 825, 832 (1994), and extends to the use of excessive force by prison officials. Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). While the “settled rule is that the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment, ” Whitley v. Albers, 475 U.S. 312, 319 (1986) (citations and quotations marks omitted), not every “malevolent touch” by a prison official implicates the Constitution. Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973) (“Not every push or shove . . . violates a prisoner's constitutional rights.”) (emphasis omitted).

         The use of de minimis force, so long as it “is not of a sort repugnant to the conscious of mankind, ” is not an Eighth Amendment concern. Hudson, 503 U.S. at 9-10 (citation and quotation marks omitted). The Eighth Amendment only applies to the “narrow class of deprivation involving ‘serious' injury inflicted by prison officials acting with a culpable state of mind.” Id. at 20. If a prison official used more than de minimis force, the inquiry 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.”[1]Id. at 6-7 (quoting Whitley, 475 U.S. at 320-21). “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited. . . .” Whitley, 475 U.S. at 319. “The infliction of pain in the course of a prison security ...

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