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Moore v. Pantoja

United States District Court, W.D. Oklahoma

January 31, 2018

CHARLES LEE MOORE II, Plaintiff,
v.
LT. PANTOJA, Defendant.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Charles Lee Moore II, a state prisoner appearing pro se, seeks damages against Defendant Juan Pantoja for allegedly violating Plaintiff's Eighth Amendment right not to be subjected to excessive physical force while imprisoned. Chief United States District Judge Joe Heaton has referred the case to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636.

         BACKGROUND

         Plaintiff's sole surviving legal claim stems from an encounter between Plaintiff and Defendant, a correctional officer at Oklahoma State Reformatory (“OSR”), on November 24, 2014. See Compl. (Doc. No. 1) at 2-3; Pl.'s Br. in Supp. (Doc. No. 2) at 2-5.[1] Plaintiff alleges that he was in his cell, wearing only a towel and “taking his heart and thyroid medication, ” when Defendant entered his cell, “grabbed him by the throat, and threw him violently to the ground.” Compl. at 1-2. After allowing Plaintiff to stand, Defendant “star[]ed at Plaintiff for a brief moment before spraying him” with pepper spray for twenty to thirty seconds. Id. at 2; see also Pl.'s Br. in Supp. at 2-3. Plaintiff's Eighth Amendment claim is asserted against Defendant in Defendant's individual capacity. See Compl. at 4.

         Defendant has moved for summary judgment. See Def.'s Am. Mot. Summ. J. (Doc. No. 49). Plaintiff has responded to Defendant's Motion (Pl.'s Resp. (Doc. No. 60)) and Defendant has filed a Reply (Doc. No. 61). Defendant also has filed a Special Report (“S.R., ” Doc. No. 19) prepared by an official at the Oklahoma Department of Corrections (“ODOC”) in accordance with this Court's Order (Doc. No. 11) and Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Upon de novo review of the undersigned's prior Report and Recommendation (Doc. No. 64), Chief Judge Heaton concluded that Plaintiff had satisfied the requirement to exhaust administrative remedies and re-referred the matter to the undersigned to consider Defendant's alternative argument that he is entitled to summary judgment on the basis of qualified immunity. See Order of Dec. 8, 2017 (Doc. No. 69) at 4-5.

         STANDARD OF REVIEW

         Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment 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). When considering a motion for summary judgment, the Court views the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

         While the Court construes a pro se litigant's pleadings liberally, all parties must adhere to applicable procedural rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary judgment, the nonmovant need not convince the Court that it will prevail at trial, but it must cite sufficient evidence admissible at trial to allow a reasonable jury to find in the nonmovant's favor-i.e., to show that there is a question of material fact that must be resolved by the jury. See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). Parties may establish the existence or nonexistence of a material disputed fact through:

• citation to “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” in the record; or
• demonstration “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(A)-(B).

         A defendant seeking summary judgment on the basis of an affirmative defense “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). “If the defendant meets this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact” as to one or more elements of the affirmative defense, absent which summary judgment must be granted in favor of the defendant. Id.

         ANALYSIS

         Defendant seeks summary judgment on the basis of his affirmative defense of qualified immunity. See Def.'s Am. Mot. Summ. J. at 15-31; see also Answer (Doc. No. 41) at 2. Qualified immunity shields government officials performing discretionary functions from personal liability “if their conduct does not violate clearly established rights of which a reasonable government official would have known.” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (internal quotation marks omitted).

         A. Applicable Standard

         “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established” at that time. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). This determination is generally made based on “the plaintiff's version of the facts”; however, such account “must find support in the record” if he or she is to defeat a qualified-immunity defense at this stage of litigation. Scott v. Harris, 550 U.S. 372, 378 (2007); Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). When a fact put forward by the plaintiff is “blatantly contradicted by the record, so that no reasonable jury could believe it, ” the Court should disregard that fact. Thomson, 584 F.3d at 1312 (internal quotation marks omitted).

         If the plaintiff demonstrates that the defendant violated a clearly established constitutional right, then the defendant “bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). “In determining whether both parties have satisfied their burdens, the court must evaluate the evidence in the light most favorable to the non-moving party.” Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993).

         B. Plaintiff's Burden to Rebut the Assertion of Qualified Immunity

         Of the two prongs required for a plaintiff's initial showing, the district court has discretion as to which to address first. Martinez, 563 F.3d at 1088. The undersigned first addresses whether Plaintiff has rebutted Defendant's argument that no constitutional right was violated and then turns to whether the implicated right was clearly established at the time of the incident in November 2014.

         1. Violation of a Constitutional Right

         The constitutional right at issue derives from the Eighth Amendment, which prohibits “cruel and unusual punishments, ” and accordingly “places restraints on prison officials, who may not . . . use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994); see U.S. Const. amend. VIII. In determining whether a prison official is liable for excessive force in violation of the Eighth Amendment, a two-prong standard applies: “(1) an objective prong that asks ‘if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation, ' and (2) a subjective prong under which the plaintiff must show that ‘the officials acted with a sufficiently culpable state of mind.'” Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999) (alteration omitted) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)).[2] When “prison officials stand accused of using excessive physical force, ” the court asks “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312, 320-22 (1986)); see also DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001). “In making this determination, ” the Court “balance[s] the need for application of force with the amount of force used.” Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). “This standard applies regardless of whether the corrections officers are quelling a prison disturbance or merely trying to maintain order.” Id. (internal quotation marks omitted).

         The following facts are asserted by Plaintiff, and find support in the record through Plaintiffs verifications of his pleading and Response:

• In November 2014, Plaintiff was incarcerated at OSR and in the custody of ODOC. Compl. at 1, 2; accord Def's S. of Facts ¶¶ 1, 2, 3 (Def's Am. Mot. Summ. J. at 8-10); Pl.'s Resp. at 1. At that time, Defendant was employed by ODOC and worked at OSR as a correctional officer. Compl. at 1; accord Answer at 1.
• On November 24, 2014, at approximately 8:30 a.m., Defendant entered Plaintiffs cell. Compl. at 2; accord Def's S. of Facts ¶ 3; Pl.'s Resp. at 1. Plaintiff was wearing only a towel and attempting to take his heart and thyroid medication. Compl. at 2. Defendant grabbed Plaintiff by the throat and threw him to the ground, causing the towel to fall off. Id. at 2-3. Next, Defendant allowed Plaintiff to stand, and Defendant stared at Plaintiff for a brief moment. Id. at 3. Defendant then sprayed Plaintiff with pepper spray for twenty to thirty seconds. Id.; see also Def's S. of Facts ¶ 4; Pl.'s Resp. at 1.
• Plaintiff remained docile and noncombative for the duration of his encounter with Defendant. Compl. at 3. Two prison officials standing nearby took no verbal or physical action to stop Defendant's conduct. Id; accord Def's S. of Facts ΒΆ 6; Pl.'s Resp. at 1. Defendant's actions caused Plaintiff ...

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