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Louie v. C/O FOO

United States District Court, E.D. Washington

March 30, 2018

DUSTIN A. LOUIE, Plaintiff,
v.
C/O FOO, SGT. BLIVEN, and C/O THOMAS W. FRANTZ, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          THOMAS O. RICE CHIEF UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. 33) and Plaintiff's Motion for Summary Judgment (ECF No. 41). These matters were submitted for consideration without oral argument. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, Defendants' Motion for Summary Judgment (ECF No. 33) is GRANTED and Plaintiff's Motion for Summary Judgment (ECF No. 41) is DENIED as moot.

         BACKGROUND

         Plaintiff Dustin A. Louie, a prisoner currently housed at the Washington State Penitentiary, is proceeding pro se and in forma pauperis. ECF No. 16 at 1. On March 15, 2017, Plaintiff filed his unverified First Amended Complaint alleging violations of his Eighth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. ECF No. 15. Plaintiff seeks declaratory relief against Defendants Spokane County Detention Services, Corrections Officer Foo, and Sergeant Bliven. Id. at 1-3. The Court dismissed Plaintiff's claims against Spokane County Detention Services with prejudice, but his claims against Defendants Foo and Bliven remain, for which they were served. ECF Nos. 16 at 3; 18 at 1.

         On December 27, 2017, Plaintiff filed an unverified Second Amended Complaint to add Officer Thomas W. Frantz. ECF No. 32.[1] Yet, Plaintiff failed to assert a short and plain statement showing that he is entitled to relief and his Second Amended Complaint (ECF No. 32) appears as a mere supplement to the First Amended Complaint (ECF No. 15). The Court instructed Plaintiff that he must file a second amended complaint that would operate as a complete substitute for the prior complaint. See ECF No. 31. Plaintiff failed to correctly file the Second Amended Complaint as instructed. In any event, since Plaintiff is proceeding pro se and the Court has the obligation to screen prisoner complaints, 28 U.S.C. § 1915A, the Court will simultaneously review the parties' motions for summary judgment and screen the allegations against Officer Frantz even though he has not been properly added or served at this time.

         On January 26, 2018, Defendants filed a Motion for Summary Judgment, seeking a complete dismissal of Plaintiff's claims with prejudice. ECF No. 33. On February 6, 2018, the Court filed the required Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) notice instructing Plaintiff on the summary judgment rule requirements. ECF No. 40. Plaintiff did not timely respond to Defendants' Motion, but filed his own Motion for Summary Judgment on March 8, 2018. ECF No. 41. Defendants reply that Plaintiff's Memorandum in Support of Plaintiff's Summary Judgment (ECF No. 41) does not include any affidavits, provide a statement of disputed facts, offer any facts that were not plead in the First Amended Complaint, and was not timely. ECF No. 42 at 1-2.

         FACTS

         The following are the undisputed facts unless otherwise noted. For purposes of summary judgment, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed.” Fed.R.Civ.P. 56(e)(2). Plaintiff did not address Defendants' assertion of facts (ECF No. 34), as he did not file a response. In Plaintiff's unverified Motion for Summary Judgment, he asserted similar facts to those found in his unverified First Amended Complaint. See ECF Nos. 41 at 5-6; 15. The following facts are undisputed or deemed so due to Plaintiff's failure to properly address Defendants' facts and his complete failure to support his assertions of fact with admissible evidence.

         1. July 27, 2016 Incident

         On July 27, 2016, Officer Foo and Officer Frantz were working transport to superior court video. ECF No. 34 at ¶ 1. Plaintiff was escorted with eight other inmates into the video courtroom and once seated, he began talking to another inmate. Id. at ¶ 5. Officer Foo instructed Plaintiff that he was to stop talking when the judge took the bench, but Plaintiff continued to talk when the judge was on the bench. Id. at ¶¶ 6, 8. Officer Foo instructed Plaintiff to stop talking and the court clerk also told him to stop talking. Id. at ¶¶ 9-10.

         After the third instruction, Plaintiff did not stop talking and Officer Foo told him to stand up and leave the courtroom, but Plaintiff refused to stand up.[2] Id. at ¶¶ 11-13. Officers Foo and Frantz walked over and stood in front of Plaintiff, Officer Foo again instructed Plaintiff to stand up and come with him. Id. at ¶ 16. Officer Foo told Plaintiff that if he did not get out of the chair, he would take him out of the chair, but Plaintiff again refused to stand up. Id. at ¶¶ 17-18. Officer Foo took Plaintiff's right arm and Officer Frantz took Plaintiff's left arm. They pulled him out of the seat to remove him from the courtroom. Id. at ¶ 20. Plaintiff locked his hands together in front of him, and in the door he began to pull and twist away from the officers. Id. at ¶¶ 21-22. The officers were unable to control him and Officer Foo took Plaintiff to the floor using a hair hold technique. Id. at ¶¶ 25-26. Plaintiff continued to resist on the ground and the officers instructed him to stop resisting. Id. at ¶¶ 27-28. Officer Frantz delivered a fist strike to the lower left back area of Plaintiff and instructed him to give Officer Frantz his hands, but Plaintiff would not release his hands from their locked position under his body. Id. at ¶¶ 29-31. Officer Frantz delivered a knee strike to the lower left back area and Plaintiff released his grip. Id. at ¶ 32. Officer Frantz was then able to get Plaintiff's left hand behind his back. Id. Officer Foo was also able to gain control of Plaintiff's right arm behind his back.[3] Id. at ¶ 33.

         Plaintiff was then handcuffed and escorted from the courtroom, but began resisting by twisting his body in the hallway. Id. at ¶ 35. Sergeant Bliven heard a call from transport stating they needed an elevator. He went to the elevator and observed several staff escorting Plaintiff. Id. at ¶¶ 36-37. Officers Frantz and Foo escorted Plaintiff to housing where he was then searched and the handcuffs were removed through the food slot. Id. at ¶ 39. Sergeant Bliven requested medical to see Plaintiff, but Plaintiff refused to come to the door or talk to the RN. Id. at ¶ 42. Plaintiff was seen approximately two weeks later for neck and side pain, but stated that the pain was better.[4] Id. at ¶ 43.

         On July 27, 2016, Plaintiff was charged with violation of Major 14 - Refusing lawful order; Major 19 - Threat to staff; and Minor 12 - Inmates shall not interfere with staff members. Id. at ¶ 70. Plaintiff waived his right to a hearing and received placement in restrictive housing for seven days. Id.

         2. August 13, 2016 Incident

         On August 13, 2016, Officer Vanatta was assigned duties as the break relief officer. Id. at ¶ 44. Plaintiff was screaming/singing loudly out his door and Officer Vanatta kicked his door and told him to knock it off. Id. at ¶¶ 47-48. Plaintiff claims a fellow inmate requested a prayer song and Plaintiff was singing. ECF Nos. 15 at 6; 41 at 5. Defendants assert that Plaintiff was yelling out his door to another inmate and Officer Vanatta again told Plaintiff to stop yelling, but he continued to yell. ECF No. 34 at ¶¶ 51-54. Officer Vanatta notified Sergeant Bliven via radio and requested Plaintiff be moved for not following directions and inciting. Id. at ¶ 55. Sergeant Bliven learned that the inmate was Plaintiff when he arrived. Id. at ¶ 56. Plaintiff was ordered multiple times to “cuff up” and after approximately three minutes he was handcuffed.[5] Id. at ¶¶ 58-59.

         Plaintiff was defiant during the escort and tried to pull away so he was walked doubled over. Id. at ¶ 60. Plaintiff attempted to stand up against staff and he was placed on the floor without force. Id. at ¶¶ 61-62. Plaintiff was given directives not to resist and to cooperate. Plaintiff acknowledged the directives and he was stood to his feet.[6] Id. at ¶¶ 63-64. Once in the cell, Plaintiff was searched and the cuffs were removed through the food slot. Id. at ¶ 66. During med pass, Plaintiff allegedly apologized to Officer Vanatta.[7] Id. at ¶ 69.

         On August 13, 2016, Plaintiff was charged with violation of Major 14 - Refusing lawful orders and Minor 1 - Whistling, loud singing and shouting prohibited. Id. at ¶ 71. Plaintiff waived his right to a hearing and moved to more restrictive housing until August 16, 2016. Id.

         DISCUSSION

         I. Standard of Review

         Summary judgment is appropriate when “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). For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is “genuine” where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 ...


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