United States District Court, D. Oregon, Pendleton Division
NATHANIEL F. HARBERT, Plaintiff,
MS. M. MILLER, Correctional Officer; LT. C. BAUER; LT. R. A. YOUNG; SGT. W. COCHELL; C/O ROLAN; and CPL. JEMMETT, Defendants.
OPINION AND ORDER
Yim You United States Magistrate Judge
plaintiff, Nathaniel F. Harbert, an inmate in the custody of
Two Rivers Correctional Institution (âTRCIâ), alleges a civil
rights action under 42 U.S.C. Â§ 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.
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
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
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).
Exhaustion Defense Waived
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).
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
Eighth Amendment Claims
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).
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.”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