United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE
October, 2018, plaintiff, a Snohomish County Jail prisoner,
filed a 28 U.S.C. § 1983 civil rights complaint, naming
as defendants Snohomish County Jail, “C.O. Grifith
#6121, ” Charles Mitchell, and “Major J. Kane,
#6058.” Dkt. 4. On April 17, 2019, the Court dismissed
all claims and defendants, except the excessive force claim
against defendant Scott Griffith. Dkt. 16. On August 21,
2019, defendant Griffith filed a motion for summary judgment,
declarations in support and a Rand notice. Dkts.
19-26. The motion was noted for September 13, 2019, and
renoted for October 11, 2019, after plaintiff alleged he was
in the process of obtaining a copy of a jail video of the
alleged incident between defendant Griffith and plaintiff.
Dkt. 28. Plaintiff subsequently filed motions regarding
spoliation of evidence as the video he sought was erased
before the law suit was filed, Dkts. 37, 41, extension of all
proceedings, appointment of counsel, Dkts. 33, 34, and
amendment of the complaint. Dkt. 40. The Court denied these
motions, and now addresses defendant Griffith's motion
for summary judgment.
Parties' Factual Assertions
§ 1983 complaint alleges defendant Griffith violated
plaintiff's rights by using excessive force against him
and injuring him on August 20, 2018. The complaint indicates
Griffith used force in response to certain acts plaintiff
committed, and certain things plaintiff said to the officer
but that the force used was nonetheless excessive.
Griffith contends summary judgment should be granted because
plaintiff admits he resisted defendant's directives by
pulling away, admits he threatened violence against
defendant, and continued to resist despite defendant's
directives to stop. Dkt. 19 at 1. Defendant further claims
his actions were reasonable and that he “escorted
plaintiff to the ground to minimize the possibility of injury
to both himself, other staff and to plaintiff.”
Specialist Mitchell states he heard plaintiff yelling and
heard defendant tell plaintiff to stop resisting. Dkt. 24.
Specialist Mitchell also saw defendant on the ground with
plaintiff and defendant was using his weight on plaintiff
because plaintiff was moving his body around and yelling
angrily. Id. Specialist Mitchell subsequently
conducted a disciplinary hearing at which plaintiff admitted
he pulled away from defendant and told defendant he would
“see him outside.” Id. Plaintiff stated
it was not fair he was housed in maximum security and the
incident would not have occurred if he had been housed
elsewhere. Plaintiff also stated he “felt justified in
his actions to resist.”
classification specialist Craig avers she saw defendant on
plaintiff with his knee between plaintiff's shoulders and
holding plaintiff's hands in a “gooseneck, ”
a hold to maintain a struggling inmate. Dkt. 21. She states
plaintiff was yelling at defendant to get off him and was
flopping his body all over the floor and kicking his legs.
Id. Specialist Craig assisted defendant by placing
her knee on plaintiff's right leg but she states
plaintiff continued to kick with his left leg and other
officers had to respond in order to restrain plaintiff.
Nurse Practitioner Miles avers she examined plaintiff after
the incident and did not see any cuts or bruises on
plaintiff's wrists, though he was still wearing
handcuffs, and that there were no other outward signs of
trauma. Dkt. 23. Ms. Miles examined plaintiff's head and
saw no signs of trauma such as puffiness, swelling or change
of color. Id. She further examined plaintiff's
face and neck and say no signs of trauma. She concluded
plaintiff “did not appear to have sustained any
injuries requiring additional medical care.”
response to defendant's motion for summary judgment,
plaintiff states it is untrue he repeatedly pulled away and
twisted or pulled his body away. Dkt. 27. Plaintiff contends
he “wiggled his arm only once, ” and “there
were no threats . . . after we exited the elevator.”
Id. Plaintiff contends defendant used a
“gooseneck” to inflict pain and that plaintiff
never said anything out of anger; that “there was no
resistance”; and defendant had no right to “drive
me face first into ground”; put their knees on his
back; or yell stop resisting “when in fact I went
totally limp.” Id.
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.
Fed.R.Civ.P. 56(a). The moving party has the initial burden
of production to demonstrate the absence of any genuine issue
of material fact. Fed.R.Civ.P. 56(a); see Devereaux v.
Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To
carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition
excerpts) but may simply point out the absence of evidence to
support the nonmoving party's case. Fairbank v.
Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.
2000). A nonmoving party's failure to comply with local
rules in opposing a motion for summary judgment does not
relieve the moving party of its affirmative duty to
demonstrate entitlement to judgment as a matter of law.
Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th
the moving party shows the absence of a genuine issue of
material fact, the non-moving party must go beyond the
pleadings and ‘set forth specific facts' that show
a genuine issue for trial.” Leisek v. Brightwood
Corp., 278 F.3d 895, 898 (9th Cir. 2002) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
The non-moving party may not rely upon mere allegations or
denials in the pleadings but must set forth specific facts
showing that there exists a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). A plaintiff must “produce at least some
significant probative evidence tending to support” the
allegations in the complaint. Smolen v. Deloitte, Haskins
& Sells, 921 F.2d 959, 963 (9th Cir. 1990).
disputes whose resolution would not affect the outcome of the
suit are irrelevant to the consideration of a motion for
summary judgment. Anderson, 477 U.S. at 248. In
other words, “summary judgment should be granted where
the nonmoving party fails to offer evidence from which a
reasonable jury could return a verdict in ...