United States District Judge Jennifer Zipps denied a Motion for Summary Judgment filed in the United States District Court for the District of Oregon by the United States in the case of Cyrus Andrew Sullivan v. United States of America (3:18-cv-00110-JGZ). Judge Zipps wrote in her order "Because the Court concludes that disputed issues of material fact exist as to Sullivan's claims, the Court will deny the Motion." The order is by no means the same as a finding of guilt against the United States, but it is a significant victory for Sullivan whose case will proceed much further than most excessive force lawsuits brought by former or current inmates that represent themselves.
In July of 2015, Sullivan was a federal inmate at the United States Penitentiary in Victorville, California (USP Victorville). He was assigned the BOP inmate number 74198-065 (https://copblaster.com/cyrussullivan/). He was serving the latter part of a 24 month sentence for Assaulting a Federal Employee in violation of Title 18 United States Code Section 111(b). Earlier that month, Sullivan was involved in an altercation with a correctional officer at the metal detector outside the chow hall. The incident began with Sullivan's glasses repeatedly setting off the detector and an officer making him go through it repeatedly even though the only part of the detector that beeped was the part by his head. Sullivan argued with the guard after he repeatedly made him walk through the metal detector over and over again holding up the line. Eventually the guard grabbed Sullivan's arm and he reacted by elbowing him in the chest. He was they pounced on by all staff present, taken to the Special Housing Unit (SHU), and served a write-up for assault on staff. That incident is not related to Sullivan's lawsuit, but the Government maintains it is relevant to his history.
After being in SHU for a couple of weeks, Sullivan and his cellmate were removed from their cell for an inspection during which staff found several contraband ink pens. Sullivan was using the pens to work on his ineffective counsel claim in his underlying case and objected to their seizure because the Court wanted all filings written in ink, so the pencils that SHU inmates were allowed was not good enough. The staff had not been enforcing the pen ban for some time, so Sullivan thought their sudden enforcement of it in his case was inappropriate. He refused to go back into the cell without his pens at which point Senior Officer Specialist Saul Luna twisted his wrist in an effort to coerce him into complying. Sullivan reacted by elbowing him. Luna then called Sullivan a "piece of sh*t," shoved Sullivan down the hallway, and took him to the ground after which a person or persons repeatedly punched him in the head. He apologized for the elbow and begged them to stop but they just kept punching him and yelling "stop resisting" even though he was laying face down with his hands cuffed behind his back the entire time. They later accused Sullivan of slipping his cuffs even though video evidence clearly shows that was not the case. Eventually a cut opened up on his scalp above his forehead, it bled profusely, and he still has a small scar (https://copblaster.com/blast/21/bop-senior-officer-specialist-saul-luna-assaulted-me-in-victorville).
Sullivan was then taken to Observation Room 1 and tortured for some time. At first Senior Officer Specialist Tyler Oeltjenbruns twisted his ankle to the point of nearly breaking it (https://copblaster.com/blast/3317/s-o-s-tyler-oeltjenbruns-took-part-in-inmate-beating-cover-up) while Senior Officer Armando Olmos urged him to "break it" (https://copblaster.com/blast/3321/armando-olmos-might-have-more-integrity-than-his-co-conspirators). Then they cut off his paper jumpsuit and placed him in restraints that were applied bone tight at the direction of Lieutenant Scott Williams (https://copblaster.com/blast/22/former-usp-victorville-shu-lieutenant-scott-williams-punched-me). The restraints were so tight that Sullivan could not stand without experiencing excruciating pain and could not escape the pain by sitting still either. At one point Lt. Williams made Sullivan stand up at which point he fell to a seated position on a concrete slab and Williams punched him in the face before saying "I told you to stand." They then left Sullivan in that condition in the holding cell for about an hour, which seemed like an eternity to him because of the pain.
When the next shift arrived they too refused to loosen the restraints saying that only medical could authorize that, but medical would not be coming to see Sullivan. Instead, they would be taking him to medical. The trip to medical from SHU is not far. It is typically only a 30 second walk from Observation Room 1 to medical because the SHU is next to medical. Unfortunately for Sullivan, that walk takes much longer for anyone in bone tight shackles that can barely walk. For him the walk took much longer than normal and seemed much longer from his perspective as he sloth'd down the hall inch by inch. Once in medical he was examined by Physican's Assistant Brigitte Wolverton. She cleaned the blood off his head and began to examine his hands. At that point she said "can you loosen this? This can't be moved." After that his restraints were finally loosened. The entire exam was caught on camera and although the footage is blurry one can still see that Sullivan's hands and feet were visibly darker due to lack of circulation right before the restraints were loosened. Eventually Sullivan was returned to his cell and an inmate worker was able to return his glasses to him after retrieving them from a trash can.
Sullivan was written up for assault on staff and found guilty by Disciplinary Hearings Officer (DHO) Diana Elliott after the FBI declined prosecution. Sullivan conceded that although he did not have the right to elbow Luna that the elbowing did not justify the beating and torture, so that should have been considered punishment enough. DHO Elliott disagreed and sentenced him to 20 days loss of good conduct time, four months MP3 player restriction, and four months visiting restriction.
Sullivan later filed a complaint with the prison documenting the abuse he suffered in SHU. That complaint was investigated by SIA Charles Alvarez. Alvarez came to interview Sullivan when he was back in SHU for making hooch in April of 2016 shortly before his release. Alvarez eventually issued findings in support of the officers in accordance with the common practices of internal affairs units. Sullivan filed a Tort Claim Notice which was rejected, so he subsequently filed suit against the United States for assault and battery under the Federal Tort Claims Act in 2018 while in custody as a pretrial detainee that eventually resulted in a guilty plea to Assauting a Federal Officer under 18 U.S.C. 111(a)(1) and a sentence of time served for throwing spicy chips at a guard (https://copblaster.com/blast/1227/scott-kerin-the-1st-prosecutor-i-was-upset-to-lose-not-a-complaint). That incident coincidentally led to a second excessive force suit due to a deputy taking it upon himself to break Sullivan's arm while he was laying face down on a mattress at the Multnomah County Detention Center (MCDC). That too was a case of staff retaliation that illustrates the type of effect that Sullivan has on law enforcement. Sullivan has a habit of pushing their button and making them snap (https://copblaster.com/blast/123/cop-blaster-lawsuit-sullivan-v-multnomah-county-et-al).
In 2019 Sullivan finally received discovery from the government as part of his lawsuit. Unfortunately, the beating took place in a blind spot not visible to the closest camera and the officers successfully used their bodies to obstruct the view of a second camera down the hall. The result is footage of a man being taken to the ground after which officers pile on top of him. Had the incident taken place just a few feet further from the closest camera, the officers would have been caught on video punching Sullivan in the head from his left, but instead people just see the backs of a couple guards in the corner. There is however one guard with a guilty expression on his face looking up at the camera as if to make sure it can't see what the others are doing. Prison guards always memorize where blind spots are so that they can use them in the future to abuse inmates. The practice of piling on top of an inmate the way that they were seen doing on camera is a common practice meant to literally shield themselves from liability by obstructing the view of the cameras. This denies victims the ability to clearly show what happened, but it also denies the government the ability to clearly contradict the victims' claims at the summary judgement phase of a lawsuit, as Judge Zipps pointed out, "The videos do not clearly depict what occurred outside of Sullivan's cell." Therefore "The Court concludes that the video evidence does not blatantly contradict Sullivan's verified allegations as to the amount of force used and whether Sullivan suffered unnecessary pain as a result of its use... Sullivan's verified allegations, if believed by a jury, constitute evidence of assault and battery and use of force beyond what would be required under the circumstances."
As to the abuse of ambulatory restraints, The Court said that the Government's "arguments are not persuasive in light of the applicable law... Sullivan alleges sufficient proof of his claims as it pertains to the application of ambulatory restraints. Sullivan does not allege that the mere use of ambulatory restraints constitutes battery. Rather, Sullivan alleges that the officers used excessive force in applying the restraints with malicious intent. Sullivan alleges that the officers applied the restraints, the officers twisted his knee and ankle to the point that he thought his ankle was going to break, that he was in 'agonizing pain as [he] lost feeling in [his] limbs," that he had "excruciating pain" when he walked, and that his "hands and feet turned purple." In addition, although medical staff do not observe any injuries to Sullivan's wrists or ankles, Sullivan alleges that when he touches his wrist he gets 'a weird, sometimes painful, shooting sensation,' that the restraints aggravated an old shoulder injury causing limited range of motion. Importantly, under the applicable law, 'an inmate who is gratuitously beaten by guards does not lost his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.' Wilkins, 559 U.S. at 38 (2010)."
The Court also noted that the video outside the observation room "does not show much of what is occurring in the room... Additionally, much of the view is blocked when officers place a privacy screen across the entrance to the room." Sullivan argues that such screens are used not for the privacy of the inmates, but for the privacy of the staff while they decide what to do to the inmate. While torturing Sullivan in the observation room, the guards intentionally obstructed the view of the camera. The privacy shield did not obstruct the observation room entirely, but the bodies of the guards did the rest. At one point Lt. Williams is seen looking directly at the camera to the point that the viewer feels that he is making eye contact with them. Then he moved his body so that the frame of the cell door would block his left side. It was at that point that he punched Sullivan in the face, but because of the move he made the camera did not catch it.
The Government also argued unsuccessfully that because Sullivan was found guilty of assaulting staff by DHO Elliott that his claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994) because "they are related to the matters determined in the prison disciplinary proceedings which has not been overturned." Judge Zipps wrote, "In this action, Sullivan's claims would not necessarily imply the invalidity of the disciplinary findings that he assaulted Officer Luna, a finding that Sullivan does not challenge... Sullivan's claims are similar to those permitted to proceed in Smithart v. Towery, 79 F.3d 951, 952-53 (9th. Cir. 1996). There, Plaintiff Smithart brought a civil rights action, asserting claims for arrest without probably cause, unfounded prosecution, and excessive force applied during arrest. Smithart had pled guilty to a charge of assault with a deadly weapon based on his driving his pickup truck at officers who had made a traffic stop of Smithart's son on Smithart's property. Id. at 952. Smithart alleged that after he exited his vehicle, officers provoked him into a confrontation which they escalated beyond necessary measure, resulting in injuries to Smithart including broken legs, a broken arm, and internal injuries. Id. The Ninth Circuit Court of Appeals held that Heck barred the claim for arrest without probably cause and unfounded prosecution, but found that Heck did not preclude Smithart's excessive force claim because a successful section 1983 action for excessive force would not necessarily imply the invalidity of Smithart's arrest or conviction for assault. Id at 952-53. Sullivan's California law claims for assault and battery are essentially identical to Smithart's 1983 claim for excessive force to the extent that the claims are evaluated utilizing the same liability standard. See Saman, 173 F.3d at 1156-57 (applying the same excessive force standard to both the 1983 and California tort claims); Munoz v. City of Union City, 16 Cal. Rptr. 3d, 539 ('A peace officer who uses unreasonable or excessive force in making a lawful arrest or detention commits a battery upon the person being arrested or detained as to such excessive force.' (citation omitted). And, like Smithart, Sullivan's claims would not necessarily imply the invalidity of the disciplinary determination that he assaulted Officer Luna in the first instance. Accordingly, the Court concludes that Heck does not bar Sullivan's claims for assault and battery.
Judge Zipps then concluded correctly that evidence offered to support the assault and battery claim by means of excessive force does not constitute an Eighth Amendment claim of cruel and unusual punishment for which the United States is immune. Sullivan merely contend that if the United States were not immune to Constitutional claims they would have violated the Eighth Amendment in this case. Unfortunately, the only recourse for Sullivan on Constitutional grounds in this case case would to pursue a Bivens action against the individual guards, which he did file, but was dismissed for failure to prosecute by the United States District Court in the District of California after the Court sent Sullivan a notice to show cause why the claim should not be dismissed to Sullivan's P.O. box. The notice gave him a couple weeks notice to file a response and since Sullivan does not got to the post office very often he did not get the notice until after the deadline. He is currently looking at ways to revive that case.
Sullivan is happy to know that he will get his day in court. He in confident that the evidence will support his claims. The Government has yet to offer any explanation for his injuries that contradict his claims that they were intentionally inflicted by means of a beating and bone tight restraints. Sullivan would upload the video evidence to support his claims, but there is a protective order in place barring him from legally doing so. The basis of the order is the Government's position that any video or picture that shows the inside of a federal correctional facility is a threat to the security of that facility and therefore should not be publicly disclosed. The best Sullivan can do for now is explain that he id in fact suffer a laceration so high on his head that it could not have been caused by him being taken to the floor, he never slipped his cuffs, he was forced to walk in bone tight restraints, and the video of his medical exam clearly shows that his arms/legs were visibly darker below the restraints.
Sullivan hopes that his case will serve as a good example for inmates seeking justice in the courts for damages inflicted on them by those charged with their custody. Most lawsuits brought by inmates are thrown out at the summary judgment phase just because those inmates do not know how to properly present their case to the court or have their access to the materials needed to prosecute a lawsuit obstructed by prison staff. Sullivan hopes that inmates will read this decision in their law libraries and realize that they need to sufficiently allege what the staff did, what their motives were, and that the alleged conduct is in fact tortious.
About the Author
Sullivan wrote this article about himself in the third person because he thinks it makes him look more like a professional journalist that just some dude writing about himself on the internet until people read this sentence. He is the founder of CopBlaster.com, a website created to expose the truth about law enforcement and those that aid them. He thanks Judge Zipps for her findings.