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A schizophrenic prisoner was sent to disciplinary segregation and claims violation of due process. Court disagrees. Ninja is in reference to the style of shoes provided to prisoners in segregation – “ninja-style soft shoes”

DEJUAN HAYWOOD HAGGINS, Plaintiff,
v.
MN COMMISSIONER OF CORRECTIONS, JOHN KING, MICHELLE SMITH, GREG LINDELL, JESSICA SYMMES, MARY MCCOMBS, PETER PUFFER, TERRY JORGESON, KENT GRANDLIENARD, & TOM SHOLES, Defendants.

Civil No. 10-1002 (DWF/LIB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

2012 U.S. Dist. LEXIS 39029

Decided February 14, 2012

Opinion by US Magistrate Judge Leo I. Brisbois:

Facts Relating to Plaintiff

Plaintiff suffers from paranoid schizophrenia and schizoaffective disorder. (Amended Compl. [Docket No. 15], p. 2.) Initially, Plaintiff was incarcerated in MCF-St. Cloud in December 2008. (Id). Plaintiff has been incarcerated at MCF-Oak Park Heights (MCF-OPH) and MCF-Stillwater since January 2009. (McComb Aff. [Docket No. 41], Ex. A). While at MCF-OPH and MCF-Stillwater, Plaintiff spent time in the administrative control unit. Id.

Throughout his time incarcerated, Plaintiff has received a number of disciplinary violations. (Green Aff. [Docket No. 80], Ex. D). From December 2008 to the filing of Plaintiff complaint on March 29, 2010, Plaintiff has been involved in 19 separate disciplinary incidents. Id. These violations have resulted in lengthy stays in disciplinary segregation for the Plaintiff. Id. One violation that occurred on November 23, 2009 required Plaintiff to spend 240 days in disciplinary segregation. Id. Other punishments, however, have been shorter. Plaintiff only received five days in administrative segregation for one of his violations. Id. [Footnote1: Plaintiff’s major disciplinary violations have also added approximately 370 days to his incarceration. (Green Aff.)]

Regarding due process claims:

the Court finds that this case mirrors the claim in Johnson v. Beard, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034 (M.D. Pa. June 27, 2008). In that case, the prisoner raised an identical claim to that of the Plaintiff’s now before this Court. Specifically, the prisoner in Johnson alleged that “Defendants violated his due process rights by placing him in punitive segregation lock-down for at least 1090 days as punishment for the symptoms of his mental illness.” Johnson, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034, at * 6. However, the Court found that placing a prisoner in punitive segregation, even if he suffered from a mental illness, did not constitute an atypical and significant hardship creating a liberty interest protected by the due process clause. 2008 U.S. Dist. LEXIS 113616, [WL] at * 7. In the instant case, like in Johnson, the Plaintiff contends that his placement in punitive segregation for 19 months was punishment for having a mental illness. But, such placement does not create a protected liberty interest.

Plaintiff has not presented any admissible evidence that his time spent in punitive segregation was so restrictive that it was atypical and significant in relation to the ordinary incidents of prison life. [Footnote4: Plaintiff contends that the restrictions of punitive segregation are more onerous than those of administrative segregation and prisoners in punitive segregation are allowed $20 dollars to purchase items from the canteen, only receive “county jail-like ‘pajama’ clothes,” receive “ninja-style soft shoes,” must use communal underwear and socks, are not allowed photographs, newspapers, and magazines, and cannot receive visits. (Pl’s Mem. in Opp’n, p. 18). However, these limitations do not give constitute a significant and atypical hardship. See Emil v. Crawford, 125 Fed.Appx. 112, 112-13 (9th Cir. 2005) (finding that the denial of canteen privileges does not trigger due process rights); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997) (holding that administrative segregation for six months with vermin; human waste; flooded toilet; unbearable heat; cold food; dirty clothing, linens, and bedding; longer periods in cell; no outside recreation; no educational or religious services; and less food was not so atypical as to impose significant hardship); Ind v. Colorado Dept. of Corrs., 2011 U.S. Dist. LEXIS 151833, 2012 WL 161418 (D. Colo. Jan. 19, 2012)(restrictions on books and magazines does not violate a constitutional right); Gordon v. Downs, 175 Fed.Appx. 798, 798-99 (9th Cir. 2006)(affirming district court’s finding that suspending visitation rights without a disciplinary hearing did not create an “atypical and significant hardship in relation to the ordinary incidents of prison life”); Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (“loss of visitation privileges is within the ordinary incidents of confinement and cannot be considered an atypical and significant hardship”).]

Plaintiff has, therefore, not created a genuine issue of material fact that he has a protected liberty interest to not be placed in segregated confinement for disciplinary infractions which would give rise to a right to due process before being placed in segregation. On this claim, the Court recommends that the Defendants’ summary judgment motion be granted.

The Magistrate Judge recommendations were adopted by District Judge Donovan Frank on 3/22/2012

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This prisoners complaint refers to a ninja-chop attack by the corrections officer. The Court dismissed the complaint for lack of evidence.

CARLTON MARBURY, Plaintiff,
v.
TIM HICKS, JR., et al., Defendants.

CASE NO. 1:09CV407

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

2010 U.S. Dist. LEXIS 116985

Decided November 3, 2010 by US Magistrate Judge Greg White:

Marbury alleges that on September 24, 2008, while he was in Local Control (segregation) at MCI, C/O Windom assaulted him. (Doc. No. 1-1 at 19; Doc. No. 24 at 3.) Specifically, he alleges that C/O Windom “chopped” him in the neck/head in front of Sgt. Dewalt’s office. (Doc. Nos. 24 at 3; 42 at 4.) Marbury contends that the incident occurred while C/O Windom was returning him to his cell. (Doc. No. 142 at 3.) Marbury had attended a hearing where he learned he was being charged with “assault of a corrections officer” and now would be transferred to a Level 4 prison. Id.

C/O Windom states that as he was escorting Marbury to his cell on September 24, 2008, Marbury stopped to talk to another inmate. (Doc. No. 136-1, Windom Decl., ¶ 3.) C/O Windom then placed his hand on Marbury’s shoulder in order to get his attention. Id. Marbury fell to the ground and said something to the effect of: “You gave me one of those Ninja chop[s]. Half my body is paralyzed. However, if you give me a cup of coffee, I’ll go to my cell.” (Windom Decl., ¶ 4.) Marbury does not deny that he made this statement to C/O Windom. C/O Windom next states that Marbury voluntarily proceeded to his cell. [Footnote #2: C/O Windom stated that he believed he took a cup of coffee to Marbury in his cell. Id.] C/O Windom further acknowledged that he had no other problems with Marbury. (Id. at ¶¶ 3, 4, 8.)

On September 26, 2008, Marbury was examined by Nurse Barker at 9:00 p.m. during sick call. (Doc. No. 137, Barker Decl., ¶ 2.) Barker noted that Marbury complained that he had been assaulted on the morning of September 26, 2008, not September 24. (Barker Decl., ¶ 3.) He further noted that Marbury refused to remove his clothes to be examined and that, otherwise, no physical injuries were noted. (Barker Decl., ¶ 4.)

The Court notes:

C/O Windom contends that he simply placed his hand on Marbury’s shoulder in order to continue guiding him towards his cell. (Doc. No. 136 at 2.) C/O Windom argues that Marbury’s allegations have been found not credible by the prison administrators, and more importantly, he presents no evidence of any injury. (Doc. No. 136 at 3.)

Concluding:

For the above reasons, the Court grants Defendant’s Motion for Summary Judgment as to C/O Windom regarding the September 24, 2008, incident. (Doc. No. 136.) The Court denies Marbury’s summary judgment motion. (Doc. No. 140.) Accordingly, the case is hereby dismissed.

ninja chop

JOSE E. PAULINO, Plaintiff, -v.- AMICUCCI, WARDEN WESTCHESTER COUNTY JAIL, OFFICER BARBIERI, SERGEANT JOHN DOE, CAPTAIN JOHN DOE AND TEN OTHER KNOWN AND UNKNOWN OFFICERS OF THE SO CALLED NINJA TUTTLE SQUAD, Defendants.

02 Civ. 208 (LAP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2003 U.S. Dist. LEXIS 995
2003 WL 174303

Decided – January 23, 2003
Opinion by Loretta A. Preska, United States District Judge:

Plaintiff Jose E. Paulino brings this pro se action, pursuant to 42 U.S.C. § 1983, against defendants Warden Amicucci, Officer Barbieri, Sergeant John Doe, Captain John Doe and ten other known and unknown officers of the so called “Ninja Tuttle Squad” (collectively, the “defendants”) for damages he sustained on or about January 14, 2000, while he was incarcerated at the Westchester County Correctional Facility in Valhalla, New York. The defendants now move to dismiss the amended complaint pursuant to the Supreme Court’s ruling in Porter v. Nussle, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002), which held that an inmate cannot bring an action with respect to prison conditions under Federal law until he first exhausts the administrative remedies available to him. Because plaintiff has not exhausted his administrative remedies, plaintiff’s amended complaint is dismissed without prejudice to renewal upon proper exhaustion of plaintiff’s administrative remedies.

BACKGROUND

The following is a brief summary of the facts recited by plaintiff in his complaint. On or about January 14, 2000 1 plaintiff was an inmate at Westchester County Jail in Valhalla, New York. (Plaintiff’s Amended Complaint, hereafter “Compl.,” at P IV). According to plaintiff, at approximately 1:00 p.m. on or about that day, in Unit 4NE of the Jail, plaintiff was assaulted and “beaten and tortured physically and mentally” by the correctional officers known as the “Ninja Tuttles.” (Id.). The incident began when plaintiff was watching television in the common area at the jail. (Id.). The air conditioner was on, so plaintiff placed a sheet around his shoulders to keep warm. (Id.). Plaintiff was approached by Officer Barbieri, who instructed him to remove the sheet from his shoulders. (Id.). Plaintiff responded by telling Officer Barbieri that it was cold in the unit and that he did not have any clothing to protect him from the cold air. (Id.). Plaintiff then requested that Officer Barbieri call a sergeant. (Compl. P IV). When the sergeant showed up, instead of speaking to plaintiff to find out what had occurred, the sergeant ordered the entire unit in “lock-in.” (Id.).

Plaintiff alleges that five minutes later, approximately ten correctional officers came to his jail cell and assaulted and beat him in the face, head, arms, lower back and genitals. (Id.). As a result of their conduct, plaintiff sustained injuries which include swelling and pain in his left cheek and the back of his head, pain in his lower jaw when he eats, cuts to his wrists from the tight handcuffs, “strong” headaches, lower back pain and genital pain. (Compl. P IV-A). Furthermore, plaintiff suffers from a “genital medical condition” and continually experiences nightmares as a result of the abuse to which he was subjected. (Id.). Plaintiff asserts that he was seen by a physician’s assistant in the Metropolitan Detention Center in Brooklyn, New York with respect to the incident, but he was administered only a pain reliever for his headaches. (Id.).

Prior to filing the instant action, plaintiff did not present the facts relating to this complaint in accordance with the state prisoner grievance procedure. (Compl. P II.B). According to plaintiff, he was not in the Westchester County Jail, where the incident occurred, for long enough to file a complaint because the United States Marshals removed him before he could initiate any administrative grievance procedure. (Compl. P II.D).

Explaining:

Here, plaintiff does not dispute that he did not exhaust his administrative remedies. (Compl. P II.B; Plaintiff’s Opposition to Defendants’ Motion to Dismiss, hereafter “Pl. Opp.” at 3). Instead, plaintiff makes several arguments for why he should be excused from exhausting his administrative remedies. Plaintiff first insists that because he was removed from the Westchester County Jail on January 19-only five days after the incident-his stay was too short for him to have initiated any grievance procedure. (Pl. Opp. at 3). Second, plaintiff asserts that he was never advised by any staff member of any grievance program or procedure. (Id.). Finally, plaintiff claims that the grievance procedure “would have been futile, my effort would have been worthless and a waist [sic] of time, because there is a big gap between the New York State and/ or Westchester County Jail and the Federal Administrative Remedy procedure.” (Id.).

Nevertheless, the Court dismissed for lack of jurisdiction:

because plaintiff has not exhausted his administrative remedies, his claim should be dismissed for lack of subject matter jurisdiction without prejudice to renewal upon proper exhaustion of those remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (dismissal for failure to exhaust administrative remedies should be without prejudice).

Recall similar incident of prison emergency response terms called Ninja Turtles and consider also the character Harry Tuttle from the movie Brazil and Mr. Tuttle from Saved by the Bell.

ninja tuttle

Below the complete in a case with 10 mentions of the word “ninja” as slang nickname for emergency response teams in a detention facility accused of using excessive force. Recall also ERT’s called Ninja Turtles.

JAMES P. NEILIS, JR., Plaintiff, v. BRENDAN D. WARD, individually and in his official capacity as Sheriff of Will County, et al., Defendants.
No. 98 C 5125
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2000 U.S. Dist. LEXIS 14091
September 21, 2000, Decided
September 22, 2000, Docketed

Memorandum Opinion and Order by Judge William T. Hart

Plaintiff James Neilis, Jr. alleges that, while being processed at the Will County Adult Detention Facility (“WCADF”), he was severely beaten by three Will County deputy sheriffs and a correctional officer. Named as defendants in their individual capacities are deputy sheriffs Jeff Turngren, Andrew Carlson, and Stanley Lantka and correctional officer Brent Graham. James Fetzner, former Facility Administrator (Warden) of the WCADF, is also sued in his individual capacity. 1 Named in his individual and official capacities is Will County Sheriff Brendan Ward. Presently pending is defendants’ motion for summary judgment.

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1 Fetzner was also named in his official capacity, but, since he is no longer the Warden, it is no longer appropriate to sue him in that capacity. It is unnecessary to substitute in the current Warden since the Sheriff is also named in his official capacity.

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On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 132 L. Ed. 2d 257, 115 S. Ct. 2249 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 (“the burden on the moving party may be discharged by ‘showing’–that is, pointing out to the district court–that there is an absence of evidence to support the nonmoving party’s case”). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Furthermore, pursuant to Local Rule 56.1(a)(3), the party moving for summary judgment is required to provide a statement of material facts as to which the moving party contends there is no genuine issue. The statement is to be in the form of numbered paragraphs. The nonmovant is to reply to each paragraph, either admitting it is uncontested or stating the nonmovant’s disagreement and specifically citing to supporting materials showing there is a genuine factual dispute. Loc. R. 56.1(b)(3)(A). The nonmovant is also to provide a statement of additional facts, if any, that would defeat summary judgment, again in the form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” Id. Expressing disagreement with a fact contained in the movant’s Rule 56.1(a)(3) statement without providing a citation to materials supporting that dispute is a basis for deeming the movant’s factual assertions to be true. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999); Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir. 1992); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). Failing to provide a paragraph-by-paragraph response to the movant’s statement can also be a basis for deeming the movant’s statement to be admitted. See Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995). However, it is within the district court’s discretion as to how strictly to apply its own rules. Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1140 (7th Cir. 1997); Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 938 n.5 (7th Cir. 1997); Midwest Imports, 71 F.3d at 1316-17; Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992); Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 975 n.2 (N.D. Ill. 1998); United States v. 47 West 644 Route 38, Maple Park, Ill., 962 F. Supp. 1081, 1084 n.2 (N.D. Ill. 1997).

In support of their motion for summary judgment, defendants filed a fully supported Rule 56.1(a)(3) statement. Plaintiff responded to defendants’ statement, but instead of specifically responding to each paragraph, plaintiff responded to sections and did not expressly identify the statements of plaintiff with which he disagreed. Plaintiff’s response is an unclear presentation that makes the court’s and the parties’ tasks more difficult and defeats, in significant part, the purposes of Local Rule 56.1. Nevertheless, to the extent plaintiff’s factual contentions are supported by citations and can be discerned, they will be considered. Counsel for plaintiff, though, is admonished to fully comply with the Local Rules in any future filings with this court.

Defendants present two arguments. The first argument is that there is no evidence linking plaintiff’s injuries to a beating. Defendants apparently contend that plaintiff’s ear was lacerated after he was placed in a holding cell. Plaintiff, however, testified that he was beaten by the four officers and that this beating caused the ear injury. On summary judgment, plaintiff’s testimony must be assumed to be true. Defendants instead focus on the question of whether a subdural hematoma that was discovered two weeks after the beating, and which required surgery and possibly resulted in permanent injury, was caused by the beating. Regardless of whether the subdural hematoma was caused by a beating inflicted by defendants, there are other injuries caused by the beating. Therefore, a lack of injury is not a basis for dismissing plaintiff’s claim. It still could be appropriate to grant partial summary judgment precluding any claim for damages based on the subdural hematoma. However, plaintiff’s treating physician’s testimony is sufficient to support that the subdural hematoma was caused by a beating administered two weeks prior to its discovery. Since there is also evidence supporting that such a beating occurred, a genuine factual dispute exists as to whether the subdural hematoma and related symptoms and injuries were caused by the beating. The claims against the four officers who allegedly inflicted the beating will not be dismissed.

The other issue raised by defendants is that the claims against Ward and Fetzner should be dismissed because there is no showing that the beating, which must be assumed to have occurred, was caused by a municipal policy or custom. In order to find Ward liable in his official capacity, it must be shown that the excessive force used on plaintiff was pursuant to a policy or custom of the Sheriff. See Board of County Commissioners of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). “It is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404. “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 405. Where it is claimed that an employee was encouraged to act unlawfully by his or her recognition that the municipality would not act to stop such conduct, it must be shown that the municipality continued to adhere to an approach that it knew or should have known had failed to prevent tortious conduct in the past and was likely to result in such conduct in the future. See id. at 407; Robles v. City of Fort Wayne, 113 F.3d 732, 736 (7th Cir. 1997). The municipality must have acted with deliberate indifference to the known or obvious consequences. Brown, 520 U.S. at 407; Robles, 113 F.3d at 736-37; Young v. County of Cook, 1999 U.S. Dist. LEXIS 19041, 1999 WL 1129108 *4 (N.D. Ill. Dec. 7, 1999).

As to Ward’s and Fetzner’s individual liability, there is no contention that either of them was directly involved in the excessive force or even any contention that either had knowledge of the particular incident. Instead, it is claimed that they are liable for having been personally involved in formulating and directing the claimed municipal policy or custom, Del Raine v. Williford, 32 F.3d 1024, 1052 (7th Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986), or because they knew about the policy or custom and facilitated it, approved it, condoned it, or turned a blind eye to it, Del Raine, 32 F.3d at 1052; Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). It still must be shown that they acted knowingly or with deliberate indifference. Id.

Plaintiff contends that Ward and Fetzner turned a blind eye to a prevalent use of excessive force at the WCADF. In particular, plaintiff contends that Emergency Response Team members 2 use excessive force in their treatment of detainees.

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2 Such officers are referred to as “E.R.T.’s” and the nickname “Ninjas,” because they dress in black garb.

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The first question to consider is whether plaintiff has presented adequate evidence of frequent episodes of the use of excessive force. The incident in question occurred on November 4, 1996. Plaintiff points to a report of “facility assaults and use of force” for 1998. Even assuming an inference can be drawn that a similar level of incidents existed in 1996, 3 the report does not show a prevalence of excessive force. This report states that, in 1998, there were 94 incidents of “inmate vs. staff” and 8 incidents of “inmate vs. inmate” assaults. Thirty-eight of those incidents resulted in injuries that were treated at the WCADF; none required treatment at a hospital. Without additional documentation such as incident reports of the individual incidents or testimony of those involved, the precise nature of the injuries is not shown. Almost all of the incidents involved the use of physical restraint. Twenty-nine of the incidents involved the use of capstun, a pepper-spray form of mace. Again, without additional detail, it cannot be known whether any of the force used was an excessive response. Plaintiff has not shown a prevalent use of excessive force in 1998.

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3 No similar report exists for 1996.

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Although not provided with a statistical report for 1996, plaintiff was provided with incident reports for the six months preceding and three months following plaintiff’s incident. Therefore, plaintiff had access to discovery from which he could have proven the existence of a prevalent use of excessive force if such existed. Plaintiff, though, does not point to any of these reports either as evidence of the excessive use of force or as evidence that defendants were aware of past incidents of excessive force. Instead, plaintiff relies on the testimony of four former inmates.

James Blair testified that, while at WCADF, a guard punched him in the shoulder and jerked him back because he was across a yellow line. 4 He does not testify that he suffered any significant injury. This incident is not shown to be excessive force and Blair states that he did not report this incident. Blair also states that, in 1997, he was thumped on the head by a desk sergeant when being discharged from the WCADF. He described it as a “good indication thump,” but not hard enough to leave any “knots.” 5 Additionally, Blair describes witnessing incidents involving other inmates. Only one description provides any semblance of detail 6 and it apparently describes an incident occurring sometime shortly after 1973. In that incident, Blair states that two inmates had already stopped fighting when Ninjas arrived and they stomped and kicked the inmate, and “everything else.”

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4 Deposition excerpts are provided and the excerpts do not always state the dates of the incidents described by Blair. Testimony is provided that he was at WCADF a number of times beginning in 1973. Since defendants do not object, the punching incident, for which a date is not provided, will be assumed to have occurred within a year prior to November 1996.5 Blair also describes force used to arrest him at his house. Although deputy sheriffs conducted the arrest, that incident is not pertinent to the prevalence of excessive force at the WCADF. Also, it occurred in approximately 1989.6 Plaintiff cites to page 41 of Blair’s transcript as referring to five or six beatings by Ninjas when Blair was first incarcerated. However, page 41 was not provided. But even assuming the incidents are described with sufficient detail and that they involved the use of excessive force, such incidents would have occurred in the mid-1970’s. Plaintiff also refers to Blair’s testimony regarding an inmate being thrown down stairs. But Blair’s entire testimony as to this incident is: “Yeah, I seen one guy get thrown down a set of stairs–not thrown–.” Blair Dep. 47. That is insufficient to establish when the incident occurred nor its nature.

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David Pierce was at the WCADF from October 31 through November 4, 1996. He describes one incident in which four or five officers, including Ninjas, dragged a detainee down a stairway with his head hitting the stairs and the detainee screaming. They also kicked the detainee both while on the stairs and when on the floor at the bottom of the stairs. Pierce did not see what preceded the dragging. Pierce also testified about an incident that occurred in 1994 when he was being processed for a DUI arrest. He saw Ninjas “knocking the hell out of” a handcuffed detainee in the booking area who had been unruly.

Chad Carter was in the WCADF in July 1996. He witnessed a detainee being dragged down stairs by officers, including Ninjas. His feet and sometimes his waist were hitting the stairs, but his head was held up so it did not hit the stairs. The Ninjas had batons. The detainee was taken into a room where Carter could not see what was happening, but the door was ajar so he could hear what was happening. He heard the inmate screaming and sounds that he understood to be kicking and hitting.

Elbert Barnes was in the WCADF from January to March 1997, for eight days in December 1997, and for six days in April 1998. He was never hit by any guards, but testified that he witnessed detainees being “throwed around” six or seven times. During the early 1997 stay, he saw a detainee “beat up” by Ninjas and other officers. The detainee was cuffed, but tried to fight with his legs. Barnes did not see what started the incident. He saw the officers push the detainee against the door and kick him.

Taking the 1996 incidents described by Pierce and Carter and the early 1997 incident described by Barnes as being excessive force, plaintiff’s evidence only includes three incidents of excessive force during the time preceding and immediately following his own November 1996 beating. WCADF generally houses approximately 350 detainees.

Some cases have held a custom or policy can be inferred from three incidents. See, e.g., Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir.), cert. denied, 513 U.S. 813, 814, 513 U.S. 814, 130 L. Ed. 2d 24, 115 S. Ct. 67 (1994) (summary judgment); Sekerak v. City & County of Denver, 1 F. Supp. 2d 1191, 1199 (D. Colo. 1998) (motion to dismiss); Perkins v. Village of Lincolnshire, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 *3 (N.D. Ill. Oct. 22, 1996) (motion to dismiss). In such cases, however, the incidents are often more closely linked because they were all committed by one person or against one person. See, e.g., Shaw, 13 F.3d at 799-800 (same supervisor inadequately responded to three assaults by the same police officer); 7 Sekerak, 1 F. Supp. 2d at 1198-99 (same supervisor also retaliated against three other employees who had supported the same political candidate); Perkins, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 at *3 (each of three times that plaintiff encountered village’s police officers, he was subjected to an unlawful arrest).

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7 The court also considered evidence that, although one of twenty troopers, 26 of 55 charges of assaults on an officer or resisting arrest were made by this trooper. Shaw, 13 F.3d at 800.

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A pervasive practice of using excessive force cannot be inferred from the three incidents that plaintiff has proven. Although all involve Ninjas, the evidence does not establish that the same Ninjas were repeatedly using excessive force. Three differing incidents over an approximately one-year period in a facility housing 350 detainees is not enough to infer that the use of excessive force is pervasive and widespread. Plaintiff has not presented evidence sufficient to show that, as of November 1996, a custom or policy of using excessive force existed at the WCADF. Cf. Snyder v. City of Topeka, 884 F. Supp. 1504, 1511 (D. Kan. 1995) (undetailed testimony as to two or three instances of retaliation inadequate to show widespread and persistent pattern of retaliation). Moreover, there is no evidence that Ward or Fetzner were aware of any of these incidents or that they took particular actions to avoid finding out about such incidents. The incidents certainly are not so prevalent that a deliberate attempt to avoid knowledge can be inferred. Plaintiff has failed to show a deliberately indifferent custom or policy of allowing the use of excessive force. The claims against Ward and Fetzner will be dismissed.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [30-1] is granted in part and denied in part. The individual and official capacity claims against defendants Ward and Fetzner are dismissed. In open court on November 8, 2000 at 11:00 a.m., the parties shall present an original and one copy of a topbound, final pretrial order in full compliance with Local Rule 16.1 and Local Rule Forms 16.1.1 and 16.1.2.

In this case about privately run prisons in Texas, inmates alleged abused in procedures, untrained staff, invasive strip searches and beatings. The Court refers to the sheriff’s terminology “ninja squad” as a reference to emergency response teams.


Kesler v. King (1998)

JAMES T. KESLER, ET AL., v. BRAZORIA COUNTY SHERIFF KING, ET AL.
CIVIL ACTION NO. G-96-703
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
29 F. Supp. 2d 356

Decided – December 7, 1998

Opinion by Samuel B. Kent:

The first group of Missouri inmates arrived at the CCRI facility on September 16, 1996. Upon their arrival, according to testimony, the inmates began acting in a “boisterous” manner. Shortly after they arrived, Sheriff King called Warden Crawford into his office to find out why the inmates were being so loud. Crawford responded that he hoped they would settle down, but that if he had to go in and settle them down, he would need assistance from the Sheriff’s Office because he did not have enough experienced personnel to handle the task. King responded somewhat cryptically, instructing Crawford that he should tell the inmates to settle down or they would face his “Ninja Squad.” Crawford relayed the message; later, he personally responded to reports of unruly conduct by the inmates and settled them down peacefully.

In concluding to dismiss some of the claims, the Court is mindful of the atrocity of the claims and the competing state and private interests:

The Court understands that overseeing and working within a jail or prison environment is a difficult task.

The injection of profit-seeking into the prison environment complicates this inherent difficulty.

Plaintiffs have produced evidence that they were kicked, bitten, and shocked. They have produced evidence that they were forced to strip naked in groups and subjected to full cavity searches, many of them conducted in full view by prison staff with absolutely no training or experience in executing such searches. They have produced evidence that at least a dozen inmates suffered vicious and unprovoked beatings at the hand of CCRI personnel and that grievances filed in every single instance with Brazoria County officials produced no response. Evidence such as this paints a grim picture of the actions of Defendants. If Defendant Brazoria County and its officials choose to farm out a portion of their jail to some quack private prison corporation in return for substantial profits for housing another state’s inmates, that is a matter between them and their citizens. If, however, there is evidence that those Defendants have utterly abandoned their duty to safeguard the essential human rights of these inmate commodities, that is a matter between them and this United States District Court.

However, the Court finds that Defendant Brazoria County is entitled to sovereign immunity with respect to Plaintiffs’ state law intentional tort and negligence claims

Here again we see another instance of correctional response teams called ninja. This seems to relate to both their attire and their tendency toward excessive force.

This 1996 case is about a Buddhist prisoner (convicted of murder and sentenced to life in prison) who claims violations of his First Amendment right to practice his religion while in Michigan prison.

TEMUJIN KENSU, Plaintiff, V. DAVID CASON, JR., et al., Defendants.
Case No. 1:91-CV-300
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
1996 U.S. Dist. LEXIS 5468

Decided – March 29, 1996

The Court explains:

While plaintiff’s claims might be succinctly characterized simply as free exercise and retaliation claims, in reality his grievances impact on virtually all aspects of the terms of his confinement. His claims involve the recognition of his religion and the right to individual and corporate practice; the availability of Buddhist books or literature in the prison libraries and visiting rooms; the composition of the Chaplains Advisory Council; shake-downs on visitations; the MDOC policy on assuming religious names; transfers to impede his ability to practice his religion and/or in retaliation for grievances filed in connection with his right to practice his religion; name-calling by prison guards; surveillance of plaintiff and his visitors in prison visiting rooms; prison newspaper publication policies; security reclassifications based upon or in retaliation for his exercise of his religious rights; cell assignments, mock pack-ups of prisoner property; the availability of tallow-free soap and hair conditioner; the composition of religious task forces; the right to sleep on the floor notwithstanding prison count policy; approval of religious vendors; the availability of protein tablets to supplement a meat-free diet; and the availability of an extensive amount of religious items and clothing.

The court notes that:

Plaintiff is also trained in several martial arts. He testified that he has a brown belt in Japanese karate and a black belt in Korean Tae Kwon Do. He admitted that he was referred to as the “Ninja Assassin” in his trial and that he had discussed his interest in the martial arts with various prison guards. Although plaintiff contends he is a pacifist, he testified that there had been at least 15 attacks on him by inmates at various prisons.

And that:

Plaintiff’s complaints about harassment were corroborated by inmates Andrew Trombley, Patrick Brown, Robert Harris and Jeffrey Terry. Mr. Trombley testified that Buddhists were not permitted to pray at meals and they were threatened with a major misconduct by the guards. Mr. Brown testified that Buddhists were called Ginsu knives and Ninja warriors by the guards at Muskegon. He also testified that Buddhists were subjected to general harassment, including mock pack-ups, pat downs, reviews of their identification and shake-downs. Mr. Harris testified that Buddhists were shaken down and harassed by guards when reading in a group. He also contended he had been denied parole three times due to his religion. Mr. Terry testified that Buddhists were called Buttyists by prison guards.

Analysis under RFRA, most of the plaintiff’s claims were denied (including denying claims for better vegetarian food options, protein supplements, soap made without animal products, chopsticks, and extra blanket to sleep on the floor, among others) but the Court did find one violation of his rights:

defendants’ policy, practice or custom of prohibiting all use by plaintiff of a simple altar and incense in his practice of Buddhism is a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. Because the use of an altar and incense is fundamental or central to the exercise of plaintiff’s religion, and because defendants have failed to show that outright prohibition of such items is the least restrictive means of serving defendants’ legitimate penological objectives, defendants must either allow plaintiff to possess and use an altar and incense in his cell or must offer him the opportunity to use such items regularly in a designated location in the prison facility on terms comparable to those on which members of other religious groups are permitted to participate in religious rituals and ceremonies.

Therefore, as a prevailing party, the plaintiff’s attorney fees were paid. Still most of his complaints were denied.