United States District Court, E.D. Washington
LEROY K. BERRA, Plaintiff,
SERGEANT THOMAS HILL, et al, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
O. Rice Chief United States District Judge.
THE COURT is Defendants Thomas Hill, Alfred Torres, Adam
Anderson, and Robert Brittos' Motion for Summary Judgment
(ECF No. 58). The matter was submitted without a request for
oral argument. Plaintiff has not filed a Response as of the
date of the entry of this Order. The Court has reviewed the
record and files therein, and is fully informed. As discussed
below, the Motion is granted.
movant is entitled to summary judgment if "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). 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). An issue
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 "burden of
establishing the nonexistence of a 'genuine
issue.'" Celotex Corp. v. Catrett, 477 U.S.
317, 330 (1986). "This burden has two distinct
components: an initial burden of production, which shifts to
the nonmoving party if satisfied by the moving party; and an
ultimate burden of persuasion, which always remains on the
moving party." Id.
nonmoving party may not defeat a properly supported motion
with mere allegations or denials in the pleadings.
Liberty Lobby, 477 U.S. at 248. Only admissible
evidence may be considered. Orr v. Bank of America, NT
& SA, 285 F.3d 764 (9th Cir. 2002). Per Rule 56(c),
the parties must support assertions by: "citing to
particular parts of the record" or
"showing that the materials cited do not establish the
absence or presence of a genuine dispute, or than an adverse
party cannot produce admissible evidence to support the
fact." (emphasis added). The "evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in [the non-movant's] favor."
Id. at 255. However, the "mere existence of a
scintilla of evidence" will not defeat summary judgment.
Id. at 252.
is proceeding pro se, but is not currently
incarcerated. In any event, a Rand v. Rowland, 154
F.3d 952 (9th Cir. 1998) (en banc) notice was provided to
Defendant on July 31, 2019. ECF No. 68.
Court screened Plaintiff LeRoy Berra's Second Amended
Complaint and determined that he stated a plausible claim
against the named Defendants based on, inter alia,
allegations that Defendants used "excessive force in
escorting Plaintiff. . . on February 19, 2016, resulting in
Plaintiff s dislocated shoulder." ECF No. 47 at 7.
Plaintiff otherwise alleged Sargent Hill (1) retaliated
against Plaintiff (for filing a grievance against Hill) by
transferring him out of the facility "expediently as to
avoid completion of the grievance process[, ]" ECF No.
42 at 15, ¶ 32, and (2) violated Plaintiffs due process
rights by forcing Plaintiff to "endure an a-typical
disciplinary sanction" of six days solitary confinement
while denying Plaintiff "his right to call a witness and
his right to attend and defend himself against the alleged
rule violation, ECF No. 42 at 14, ¶¶ 28-29
submitted a Motion for Summary Judgment (ECF No. 58) on July
30, 2019. On September 16, 2019, Plaintiff requested an
extension of time to file a Response. ECF No. 69. The Court
granted the motion and set the deadline to file a Response to
November 15, 2019. ECF No. 70. As of the date of the entry of
this Order, Plaintiff has not filed a Response, nor has he
requested additional time to respond. Defendants' Motion
for Summary Judgment (ECF No. 58) is now before the Court.
U.S.C. § 1983 provides: "Every person who, under
color of any statute, ordinance, regulation, custom, or usage
. . . subjects, or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured[.]" "A
person 'subjects' another to the deprivation of a
constitutional right, within the meaning of section 1983, if
he does an affirmative act, participates in another's
affirmative acts, or omits to perform an act which he is
legally required to do that causes the deprivation of which
complaint is made". Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978). A person "causes" a
constitutional deprivation "by setting in motion a
series of acts by others which the actor knows or reasonably
should know would cause others to inflict the constitutional
injury." Id. at 743-44.
force claims related to efforts to subdue convicted prisoners
are analyzed under the Eighth Amendment's ban on cruel
and unusual punishment. See Graham v. Connor, 490
U.S. 386, 393-94 (U.S., 1989) (citing Whitley v.
Albers, 475 U.S. 312, 318-326 (1986) (claim of excessive
force to subdue convicted prisoner analyzed under an Eighth
Amendment standard)). The "unnecessary and wanton
infliction of pain" constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.
Whitley, 476 U.S. at 319 (quoting Ingraham v.
Wright, 430 U.S. 651, 670 (1977)). "To be cruel and
unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due
care for the prisoner's interests or safety."
viable § 1983 claim of retaliation for engaging in
activity protected by the First Amendment in the prison
context involves the following elements: (1) An assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal." Jones v.
Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (citing
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
"[p]risoners are entitled to certain due process
protections when subject to disciplinary sanctions."
Brown v. Oregon Dept. of Corrections,751 F.3d 983,
987 (9th Cir. 2014) (citing Wolff v. McDonnell, 418
U.S. 539, 564-71 (1974)). However, "these procedural
protections adhere only where the deprivation implicates a
protected liberty interest-that is, where the conditions of
confinement impose an 'atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life.'" Id. (quoting Sandin v.
Conner,515 U.S. 472, 484 (1995)). "If a protected
liberty interest is at stake, then the court must determine