MARKIAN GAVRIILVICH KUZNETSOV v. OFFICER ZAMRIPPA, OFFICER ORTIZ, OFFICER CARLSON, and OFFICER BARTELL
Case No. 2:20-cv-01942-AR
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
October 6, 2022
ARMISTEAD, Magistrate Judge
ARMISTEAD, Magistrate Judge
Plaintiff Markian Kuznetsov is an adult in the custody of Oregon Department of Corrections and held at Eastern Oregon Correctional Institution (EOCI). Kuznetsov, who is representing herself, brings this civil rights action under
PRELIMINARY PROCEDURAL MATTER
Kuznetsov filed this action on November 9, 2020. Compl., ECF No. 2. Defendants moved for summary judgment on December 13, 2021. Defs. Mot. Summ. J., ECF No. 24. The following day, the Magistrate Judge John V. Acosta issued the following notice to Kuznetsov:
The defendants have made a motion for summary judgment (Motion for Summary Judgment [24]) by which they seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine dispute of material fact--that is, if there is no real dispute about any fact that would affect the result of your case--and the party who asked for summary judgment is entitled to judgment as a matter of law. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, as provided inRule 56(c) , that contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.
Summ. J. Advice Notice, ECF No. 25. The court instructed Kuznetsov to file a response by January 13, 2022. On December 22, 2021, Kuznetsov filed a motion for appointment of counsel and a response to the summary judgment motion, which was unaccompanied by any exhibits. ECF Nos. 26 & 27. In a January 5, 2022 Order, Judge Acosta denied Kuznetsov‘s fourth motion to appoint counsel, finding that she had not established exceptional circumstances. Order, ECF
On February 9, 2022, Kuznetsov filed a motion to withdraw consent, and a motion for extension of time to file a response to the pending summary judgment motion. ECF Nos. 31 & 32.1 On February 10, 2022, the court granted Kuznetsov‘s motion for extension of time and her request for copies of hard copies of the relevant pleadings. Order, ECF No. 33. On March 23, 2022, this case was reassigned to this court.
On May 5, 2022, the court granted Kuznetsov‘s second motion for extension of time to respond to the summary judgment motion, giving her until July 5 to file a response, and denied her request for a copy of the record explaining that the court previously provided her with a set of the pertinent filings. Order, ECF No. 38. On June 1, 2022, the court granted defendants’ motion to stay discovery, noting that the deadline for completing discovery passed on December 13, 2021. Order, ECF No. 40. Kuznetsov does not appear to have requested any discovery in this case until May 2022, a year and half after filing her complaint, and five months after discovery closed. Despite being given six months of additional time to respond to the summary judgment motion, Kuznetsov did not file any supporting documentation, and did not ask to reopen discovery.
Defendants’ version of events is supported by declarations of EOCI officers and official records from EOCI related to the events in question. See id. at 13-46. Kuznetsov‘s complaint in this action is unverified,2 which means that the court may not treat the complaint as an affidavit
FACTUAL BACKGROUND
In this use-of-force case, the parties agree that defendants used force against Kuznetsov but disagree as to what types of force were used and why. On September 7, 2019, defendants Carlson and Ortiz escorted Kuznetsov from her cell in the disciplinary segregation unit (DSU) to the recreational yard enclosure. Ortiz Decl. ¶ 5, ECF No. 24. Kuznetsov‘s hands and ankles were handcuffed for the transfer. Bartell Decl. ¶ 6, ECF No. 24. During the escort, Kuznetsov asked about what exercise equipment she would be permitted to use in the yard. Ortiz Decl. ¶ 5; Carlson Decl. ¶ 5, ECF No. 24. When Carlson informed Kuznetsov that, due to her “incentive level,” she would be placed in a plastic-covered yard cell and could not have equipment, Kuznetsov became agitated and refused to continue walking unless provided with yard equipment. Carlson Decl. ¶ 5. Carlson told Kuznetsov that her options were to go to the yard or return to her cell. Id. Defendant Bartell, who was sitting at the sergeant‘s desk, overheard the
Carlson and Bartell directed Kuznetsov to stand and moved toward her to assist Kuznetsov to her feet, at which point she became combative and kicked out at defendants, striking Carlson just below the knee. Carlson Decl. ¶ 6. Kuznetsov continued kicking toward defendants and threatened to spit on them. Id. Ortiz dropped and placed his knee across Kuznetsov‘s chest. Ortiz Decl. ¶ 5. Carlson called “staff assault” over the radio, and Carlson and Bartell each administered a two- to three-second burst of oleoresin capsicum (OC) spray towards Kuznetsov‘s face, and a spit mask was applied to her head. Ortiz Decl. ¶ 5; Bartell Decl. ¶ 6.; Carlson Decl. ¶ 7. Carlson attempted to use Kuznetsov‘s “hypoglossal notch to stand [her] to [her] feet,” but she continued to refuse to walk and resisted defendants attempts to get her to stand. Carlson Decl. ¶ 7.
Having heard Carlson‘s radio announcement, defendant Zamarripa arrived at the incident scene. Zamarripa Decl. ¶ 5, EFC No. 24. Zamarripa saw Carlson and Bartell struggling with Kuznetsov and retrieved a humane wrap.3 Id. ¶¶ 6-7. When Zamarripa returned, Bartell, Carlson, and Ortiz began placing Kuznetsov into the humane wrap, and Kuznetsov kicked out at Bartell. Carlson Decl. ¶ 8; Zamarripa Decl. ¶ 8. In response, Carlson twisted Kuznetsov‘s ankle restraints and Zamarripa placed his right knee on Kuznetsov‘s chest and face area, and both officers gave
Defendants submitted surveillance footage of the incident. Because the camera was stationed at the end of a cell block corridor and most of the incident occurred in a stairwell just off the corridor, few details can be seen. Rabb Decl. Ex. 3, EFC No. 29, 44. The video shows defendants securing Kuznetsov in the humane wrap because the top half of the humane wrap extended into the corridor. Kuznetsov can be seen for about five seconds as officers initially maneuvered her in the humane wrap and one moment of Kuznetsov struggling and extending her legs in a kicking motion from a bent position. In the remaining 60 seconds it took defendants to secure Kuznetsov, footage appears to show Zamarripa lowering his knee near Kuznetsov‘s chest and face area, after which Kuznetsov stops thrashing. Defendants are then seen carrying Kuznetsov away to the holding cell.
On the same day as the incident, Captain Bobby Rabb investigated what had occurred and prepared an Oregon Department of Corrections (ODOC) Unusual Incident Report (Incident Report). See Rabb Decl. Ex. 2 at 3-5, ECF 24. The Incident Report states that, shortly after officers brought Kuznetsov to the holding cell, she was removed from the humane wrap and secured to the wall restraint so that Health Services could assess her condition. Id. Kuznetsov was “monitored continuously for more than the required 30 minutes with no complications noted.” Id. at 4. Kuznetsov was also provided with damp cloths and clean clothing, and she was offered a decontamination shower, which she declined. Id. No staff reported injuries. Id. Photos
LEGAL STANDARDS
Summary judgment is appropriate where 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 court construes a pro se litigant‘s filings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se party involved in civil litigation, however, is held to the same standards in responding to a motion for summary judgment and “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); see also Warden v. Robinson, 2014 WL 252308, at *5 (D. Ariz. Jan. 23, 2014) (“A pro se litigant is held to the same standard in responding to a motion for summary judgment as a represented party.“). Additionally, “[i]t is not the district court‘s job to sift through the record to find admissible evidence in support of a non-moving party‘s case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Therefore, when a plaintiff makes assertions but does not identify specific evidence in the record to support those assertions, the court is not required to search for it. See F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citation omitted) (“A non-movant‘s bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.“).
DISCUSSION
Defendants argue that they are entitled to summary judgment on Kuznetsov‘s excessive-force claim because there is no genuine issue of material fact as to whether defendants applied force in a good-faith effort to maintain and restore discipline. Mot. 2, ECF 24. Defendants argue that they are also entitled to summary judgment on Kuznetsov‘s failure-to-intervene claim because Ortiz had no duty to intervene where defendants did not use excessive force against Kuznetsov. Id.
A. Excessive Force Claim
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). Where a plaintiff alleges that correctional officers used excessive force against him, the issue is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The standard has both objective and subjective elements. Objectively, the alleged wrongdoing must be “harmful enough to establish a constitutional violation.” Hudson, 503 U.S. at 8 (internal quotation marks and citation omitted). Subjectively, prison officials must act “with a sufficiently culpable state of mind” id., but an “express intent to inflict unnecessary pain is not required.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To determine whether a particular
Starting with the force used, the parties agree that Carlson and Bartell deployed OC spray against Kuznetsov and that Zamarripa placed his knee onto Kuznetsov‘s chest and face area. Kuznetsov claims she was also “hit in the head multiple times” by Carlson and Bartell and says that she turned her “body and face away from the punches and kicks” and was “slammed onto the ground” with enough force to lose consciousness. Compl. 4-5. Kuznetsov offers no proof that such actions occurred, and there are no medical records that could substantiate her claims that she “blacked out” or suffered a cracked tooth after being “kick[ed] or kneed” in the face. Resp. 3, ECF 41. In fact, the brief video of the incident shows that Kuznetsov was fully conscious when the officers applied the humane wrap to her body. See Rabb Decl. Ex. 3, ECF 44. Moreover, the Chemical Agent Deployment Form for the incident shows that Kuznetsov was assessed by Nurse Bevan shortly after she was brought to the holding cell and was immediately provided with decontamination supplies; the incident report further notes that Kuznetsov was “monitored continuously for more than the required 30 minutes with no complications noted” after she was brought to the holding cell. Rabb Decl. Ex. 2 at 4, ECF 24. In light of this unrefuted evidence, no reasonable jury could find Kuznetsov‘s alleged injuries credible.
Despite Kuznetsov‘s confrontational actions, defendants refrained from the use of force until Kuznetsov escalated the situation by striking out at the officers with her feet. Kuznetsov insists that she never made “a[n] aggressive move or any attempt to assault staff,” Resp. 4, and
When Kuznetsov struck Carlson and Bartell with her feet, Carlson called “staff assault” over the radio, and he and Bartell both deployed a blast of OC spray at Kuznetsov‘s facial area for 2-3 seconds to gain her compliance. Although deploying pepper spray is an application of force, a “plaintiffs active resistance and physical assault upon the officers—combined with the immediate threat to officer, inmate, and institutional safety—render[s] the use of significant force both necessary and reasonable under the circumstances.” Boyd, 2016 WL 11755423, at *14 (“The degree of resistance is relevant to the amount of force that is reasonable.“); see also Taylor v. San Bernardino Cnty. Sheriff‘s Dep‘t, Case No. EDCV 14-1190-AG (JEM), 2017 WL 2789502, at *6-7 (C.D. Cal. Mar. 31, 2017), adopted, 2017 WL 2784832 (June 27, 2017) (finding officers reasonably deployed OC spray to gain compliance and avoid a forced cell extraction after inmate repeatedly refused to comply) (citing Stewart v. Stewart, 60 F. App‘x. 20, 22 (9th Cir. 2003)).
Like the plaintiff in Boyd, Kuznetsov‘s recalcitrance created a security situation when she refused to stand up and ignored defendants’ multiple commands to return to her cell, and she directly threatened officer safety by striking at Carlson and Bartell with her feet. See id. at *12-13. Under these circumstances, defendants “reasonably perceived plaintiff as posing a threat not only because [she] refused to respond to verbal commands, but also because of [her] assaultive response.” Id.; see also Henderson v. Lamarque, No. C 00-4664 VRW, 2002 WL 1300271, at *3 (N.D. Cal. June 6, 2002) (“[D]efendants reasonably perceived a significant threat after plaintiff refused to comply with orders and struck Officer Esparza[.]“). As the court found in Boyd, “[o]n these facts, the force that [was] ... applied was neither unreasonable nor indicative of a malicious and sadistic intent solely to harm plaintiff.” Id. It is likewise clear that “plaintiff [herself] created the reasonably-perceived need for force and defendants responded
Further, when the OC spray failed to stop Kuznetsov from continuing to assault Bartell, it was reasonable for Zamarripa to briefly place his knee across Kuznetsov‘s chest and face area as a further effort to “gain control of the situation.” See Zamarripa Decl. ¶ 8, ECF 24. Although there may have been less painful alternatives available to Zamarripa, there is no evidence that Kuznetsov sustained any serious injury, and courts recognize that “safety and order at these institutions requires the expertise of correctional officials who must have substantial discretion to devise reasonable solutions to the problems they face.” Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 326 (2012). Officers facing disturbances “are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In short, the unrefuted evidence of Kuznetsov‘s noncompliance and physical aggression makes it clear that Carlson and Bartell used force “in a good faith effort to restore discipline and order” and not to harm Kuznetsov. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting Whitley, 475 U.S. at 320-21). Even considering the evidence in the light most favorable to Kuznetsov, no reasonable jury could find that defendants applied force “maliciously and sadistically for the purpose of causing harm.” Id. (quoting Whitley, 475 U.S. at 320-21); see Fudge v. Bennett, Case No. 2:19-cv-01102-SB, 2022 WL 4227423, at *7 (D. Or. Sept. 2, 2022), adopted, 2022 WL 4216941 (Sept. 12, 2022), appeal filed (9th Cir. Sept. 14, 2022) (stating malicious and sadistic force under the Eighth Amendment requires a more culpable mental state than that required for excessive force claims under the Fourth Amendment). Defendants are
B. Failure to Intervene Claim
Kuznetsov‘s second claim alleges that Ortiz violated her rights because he “stood by and did nothing and said nothing as I was assaulted.” Compl. 4, ECF 2. The court understands Kuznetsov to be asserting a failure to intervene claim. See Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (stating that “a prison official can violate a prisoner‘s Eighth Amendment rights by failing to intervene“); McGruder v. Los Angeles Cnty. Sheriff‘s Dep‘t, No. CV 17-7024-CJC (JPR), 2018 WL 6137626, at *5 (C.D. Cal. Jan. 26, 2018) (“A jail officer who does not himself use force may be liable for a constitutional violation if he has a reasonable opportunity to intervene in other officers’ use of excessive force but does not do so.“). However, as discussed above, the record shows that defendants did not use excessive force against Kuznetsov. Thus, Ortiz had no reason to believe that the other defendants were violating Kuznetsov‘s constitutional rights.
Because no reasonable jury could find defendants used excessive force against Kuznetsov, no reasonable jury could find that Ortiz violated her rights by failing to intervene. See Harbert v. Miller, No. 2:18-CV-00072-YY, 2019 WL 3754907, at *5 (D. Or. Aug. 8, 2019) (granting the defendants summary judgment on a failure to intervene claim “because the cell
CONCLUSION
For all these reasons, defendants’ Motion for Summary Judgment (ECF No. 24) is GRANTED.
IT IS SO ORDERED.
Dated October 6, 2022.
JEFFREY ARMISTEAD
United States Magistrate Judge