Jackson v. Aviles et al, No. 3:2018cv00060 - Document 56 (S.D. Cal. 2019)

Court Description: REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANT FINKS MOTION FOR SUMMARY JUDGMENT ECF No. 41 AND FOR ORDER DENYING PLAINTIFFSMOTION FOR SUMMARY JUDGMENT ECF No. 44 : Objections to R&R due by 6/28/2019 and Replies due by 7/19/2019. Signed by Magistrate Judge Barbara Lynn Major on 5/28/2019.(All non-registered users served via U.S. Mail Service)(sjm)

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Jackson v. Aviles et al Doc. 56 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANT FINK’S MOTION FOR SUMMARY JUDGMENT [ECF No. 41] AND FOR ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF No. 44] Plaintiff, 12 13 v. 14 F. AVILES, et al., 15 Case No.: 18CV60-BAS (BLM) DUWAYNE JACKSON, Defendants. 16 17 18 19 This Report and Recommendation is submitted to United States District Judge Cynthia 20 Bashant pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.3(f) of the United States District 21 Court for the Southern District of California. 22 RECOMMENDS that Defendants’ motion for summary judgment be GRANTED and that 23 Plaintiff’s motion for summary judgment be DENIED. 24 For the following reasons, the Court BACKGROUND 25 On February 26, 2018, Plaintiff filed his First Amended Complaint (“FAC”) alleging several 26 claims for relief. FAC. Plaintiff alleges that (1) Defendant Aviles conducted a retaliatory search 27 of his cell on March 28, 2017, (2) Defendant Aviles violated his rights under the Eighth 28 Amendment by harassing and mocking Plaintiff, by calling him a “retard,” by pretending to be a 1 18cv60-BAS (BLM) Dockets.Justia.com 1 person with mental health challenges, and by implying that Plaintiff likes to “tell the supervisors 2 on [the officers,]” (3) Defendant Aviles violated his rights under the Eighth Amendment by 3 “maliciously and sadistically” snatching and pulling the chains of Plaintiff’s waist restraints, (4) 4 Defendant Fink violated his rights under the Eighth Amendment through his failure to adequately 5 train or supervise Defendant Aviles, investigate the incident, discipline Defendant Aviles, or 6 protect Plaintiff, and (5) Defendants Mendoza and Osgood were deliberately indifferent to 7 Plaintiff’s safety when they placed Plaintiff - a protective custody inmate - in the same transport 8 van as Inmate Razon - a general population inmate – and Plaintiff was beaten. Id. at 3-11. 9 On February 27, 2019, Defendants filed a motion for summary judgment arguing that 10 Defendant Fink is not liable under the Eighth Amendment and that Plaintiff failed to exhaust his 11 administrative remedies. ECF No. 41-1 (“D. MSJ”). Plaintiff timely opposed the motion on April 12 1, 2019. ECF No. 48 (“P. Oppo.”). Defendants filed a reply on April 17, 2019. ECF No. 52 (“D. 13 Reply”). 14 On March 5, 2019, Plaintiff filed a motion for summary judgment arguing that the 15 undisputed facts establish that all of the Defendants violated his constitutional rights. ECF No. 16 44 (“P. MSJ”). Defendants timely opposed the motion on April 4, 2019. ECF No. 49 (“D. Oppo.”). 17 Plaintiff did not file a reply. See Docket. LEGAL STANDARDS 18 Pro Se Litigants 19 A. 20 When a plaintiff appears pro se, the court must be careful to construe the pleadings 21 liberally and to afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 22 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). This rule of liberal 23 construction is “particularly important” in civil rights cases. Hendon v. Ramsey, 528 F. Supp. 2d 24 1058, 1063 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); 25 see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (stating that because “Iqbal 26 incorporated the Twombly pleading standard and Twombly did not alter the courts’ treatment 27 of pro se filings; accordingly we continue to construe pro se filings liberally . . . .” This is 28 particularly important where the petitioner is a pro se prisoner litigant in a civil matter). 2 18cv60-BAS (BLM) 1 B. Summary Judgment 2 Summary judgment is appropriate if there is no genuine issue as to any material fact, 3 and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). A 4 dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return 5 a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 6 The moving party has the initial burden of demonstrating that summary judgment is proper. 7 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing 8 party to provide admissible evidence beyond the pleadings to show that summary judgment is 9 not appropriate. Id. at 322-24. The opposing party “may not rest upon mere allegation or 10 denials of his pleading, but must set forth specific facts showing that there is a genuine issue 11 for trial.” Anderson, 477 U.S. at 256 (citation omitted). 12 Because Plaintiff bears the burden of proof at trial, to prevail on summary judgment, he 13 must affirmatively demonstrate that no reasonable trier of fact could find other than for him. 14 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear 15 the burden of proof at trial and in moving for summary judgment, they need only prove an 16 absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 17 (9th Cir. 2010). If Defendants meet their initial burden, the burden then shifts to Plaintiff “to 18 designate specific facts demonstrating the existence of genuine issues for trial.” Id. (citing 19 Celotex Corp., 477 U.S. at 323. This requires Plaintiff to “show more than the mere existence of 20 a scintilla of evidence.” Id. (citing Anderson, 477 U.S. at 256). 21 A court may not weigh evidence or make credibility determinations on a motion for 22 summary judgment; rather, the inferences to be drawn from the underlying facts must be 23 viewed in the light most favorable to the nonmoving party. Soremekun, 509 F.3d at 984. If 24 direct evidence produced by the moving party conflicts with direct evidence produced by the 25 nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving 26 party with respect to that fact. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (citing 27 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987)). In 28 addition, the “evidence of the non-movant is to be believed, and all justifiable inferences are to 3 18cv60-BAS (BLM) 1 be drawn in his favor.” Anderson, 477 U.S. at 256 (citing Adickes v. S.H. Kress & Co., 398 U.S. 2 144, 158-159 (1970)). 3 C. Section 1983 4 42 United States Code Section 1983 imposes two essential proof requirements upon a 5 claimant: (1) that a person acting under color of state law committed the conduct at issue, and 6 (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by 7 the Constitution or laws of the United States. See 42 U.S.C. § 1983; Marsh v. Cty. of San Diego, 8 680 F.3d 1148, 1152 (9th Cir. 2012). A person acting under the color of law deprives another 9 “of a constitutional right, within the meaning of § 1983, ‘if he does an affirmative act, participates 10 in another’s affirmative act, or omits to perform an act which he is legally required to do that 11 causes the deprivation of which [the plaintiff complains].’” Preschooler II v. Clark County Sch. 12 Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 13 743 (9th Cir. 1978)). “The inquiry into causation must be individualized and focus on the duties 14 and responsibilities of each individual defendant whose acts or omissions are alleged to have 15 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 16 D. Evidence the Court May Consider on Summary Judgment 17 In evaluating a motion for summary judgment, a court may only consider admissible 18 evidence. See Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). A party may not 19 create a triable issue of fact merely by presenting argument in its legal memoranda. See S.A. 20 Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 21 1238 (9th Cir. 1982); see also Estrella v. Brandt, 682 F.2d 814, 819–20 (9th Cir. 1982) (on 22 summary judgment, statements in legal memoranda are not evidence and “do not create issues 23 of fact capable of defeating an otherwise valid summary judgment motion”). However, if a pro 24 se plaintiff submits a verified pleading, the court must consider the factual contents of the 25 verified pleading. See Lopez v. Country Ins. & Fin. Serv., 252 Fed. App'x 142, 144 n. 2 (9th Cir. 26 2007) (affirming summary judgment in favor of the defendant where the pro se plaintiff “failed 27 to submit any admissible evidence in opposition to the defendants' motion for summary 28 judgment ...,” although observing that “[b]ecause [the plaintiff] was representing himself pro 4 18cv60-BAS (BLM) 1 se, had he signed his pleadings and/or motions under penalty of perjury, the district court would 2 have been required to treat them as evidence for the purpose of summary judgment); see also; 3 Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (considering plaintiff’s evidence where plaintiff 4 “attested under penalty of perjury that the contents of the motions or pleadings are true and 5 correct”); Harris v. Shelland, 2017 WL 2505287, at *4 (S.D. Cal. June 9, 2017) (“neither an 6 unverified complaint nor unsworn statements made in the parties' briefs can be considered as 7 evidence at this [summary judgment] stage”); and Barragan v. Flynn, 2017 WL 5070037, at *2 8 (S.D. Cal. Nov. 3, 2017) (same). 9 In Fraser v. Goodale, 342 F.3d 1032, 1036-1037 (9th Cir. 2003), the court reversed a 10 grant of summary judgment, holding that the district court should have considered unsworn, 11 arguably inadmissible statements written by the plaintiff in a diary. The Ninth Circuit reasoned 12 that “[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's 13 form. We instead focus on the admissibility of its contents.” Id. at 1036-1037. The court opined 14 that the contents of plaintiff’s diary “were mere recitations of events within [the plaintiff's] 15 personal knowledge and, depending on the circumstances, could be admitted into evidence at 16 trial in a variety of ways,” including through plaintiff’s testimony. Id. Because the contents 17 could be presented in an admissible form at trial, the court concluded that diary’s contents 18 should have been considered as part of the summary judgment motion. Id.; see also Rosenfeld 19 v. Mastin, 2013 WL 5705638, *5 (C.D. Cal. Oct. 15, 2013) (considering plaintiff’s unsworn 20 statements made in the third amended complaint and in the opposition because plaintiff “plainly 21 has personal knowledge of the content of these statements and could present the statements 22 in admissible form through his own testimony at trial,” but not considering plaintiff’s speculative 23 statements regarding a particular claim where there was no indication plaintiff had personal 24 knowledge of the claim); Wilson v. Med. Servs. Div., 2017 WL 1374281, at *7 (S.D. Cal. Apr. 25 13, 2017) (report and recommendation denied in part on other grounds) (finding that plaintiff 26 failed to show a triable issue of material fact even after considering plaintiff’s opposition to the 27 motion for summary judgment that was not signed under penalty of perjury) (citing Rosenfeld, 28 5 18cv60-BAS (BLM) 1 2013 WL 5705638 at *5).1 2 Plaintiff’s opposition was signed under penalty of perjury [see P. Oppo. at 34, Declaration 3 of Plaintiff in Support of Opposition to Defendants’ Motion for Summary Judgment] so the Court 4 will consider the relevant factual statements made by Plaintiff in the opposition in evaluating the 5 pending motion. See Jones, 393 F.3d at 923 (“because Jones is pro se, we must consider as 6 evidence in his opposition to summary judgment all of Jones's contentions offered in motions 7 and pleadings, where such contentions are based on personal knowledge and set forth facts 8 that would be admissible in evidence, and where Jones attested under penalty of perjury that 9 the contents of the motions or pleadings are true and correct”). Plaintiff’s FAC was not signed 10 under penalty of perjury. FAC. Plaintiff’s unverified FAC contains factual statements regarding 11 his claims of Eighth Amendment violations and retaliation about which Plaintiff has personal 12 13 1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Several Ninth Circuit cases have interpreted Fraser to permit the consideration of unverified pleadings, unsworn memoranda, and other forms of inadmissible material at the summary judgment stage. See Jeffries v. Las Vegas Metro. Police Dep't, 713 F. App'x 549, 549–51 (9th Cir. 2017) (affirming district court’s grant of summary judgment to defendant on plaintiff’s 42 U.S.C. § 1983 claims and finding district court did not err in considering the exhibits attached to defendant’s motion for summary judgment even though some of the exhibits were not authenticated “because a competent witness with personal knowledge could authenticate the exhibits at trial”) (citing Fraser, 342 F.3d at 1036-37); see also Singleton v. Lopez, 577 F. App'x 733, 736 (9th Cir. 2014) (noting that “[i]t is not controlling at the summary judgment phase that the evidence was hearsay, so long as the evidence could be presented in an admissible form at trial,” but finding that the magistrate judge did not abuse his discretion in refusing to admit a 2011 prison report where the statements were not relevant to pro se plaintiff’s 42 U.S.C. § 1983 claims.) (citing Fraser, 342 F.3d at 1037); Aholelei v. Hawaii, Dep't of Pub. Safety, 220 F. App'x 670, 672 (9th Cir. 2007) (finding that the district court abused its discretion in not considering any of plaintiff’s evidence when evaluating whether there had been a constitutional violation by prison officials because the evidence, which consisted primarily of litigation and administrative documents involving another prisoner and letters from other prisoners, “would be admissible at trial if the other inmates were called as witnesses.”) (citing Fraser, 342 F.3d at 1036); and Santa Ana Police Officers Ass'n v. City of Santa Ana, 723 F. App'x 399, 402 (9th Cir. 2018) (affirming district court’s granting of summary judgment on Plaintiffs-Appellants’ 42 U.S.C. § 1983 claim and finding that the court did not improperly rely on Defendants’ exhibits because they are not authenticated business records as that would “ignore[] the fact that evidence that is not currently in a form that is admissible at trial is ‘admissible for summary judgment purposes [if it] ‘could be presented in an admissible form at trial.’” (citing Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004) (quoting Fraser, 342 F.3d at 1037)). 6 18cv60-BAS (BLM) 1 knowledge. FAC. Because Plaintiff could testify under oath at trial regarding his personal 2 knowledge, the Court will consider those statements. See Fraser, 342 F.3d at 1036-1037. This 3 conclusion is further supported by the fact that Defendants do not object to consideration of 4 Plaintiff’s unverified FAC or the evidence submitted in support of the complaint. See Torres v. 5 Rite Aid Corp., 412 F. Supp. 2d 1025, 1028, n.2 (N.D. Cal. 2006) (accepting as competent 6 evidence unsworn declarations not made under penalty of perjury where defendant did not 7 object to the deficiencies) (citing United States ex rel. Austin v. W. Elec. Co., 337 F.2d 568, 574– 8 75 & n. 19 (9th Cir. 1964) (holding that court properly considered technically defective affidavits 9 submitted in connection with summary judgment motion in light of opponent's failure to object); 10 Scharf v. U.S. Attorney Gen., 597 F.2d 1240, 1243 (9th Cir. 1979) (“Generally ... formal defects 11 [such as an affidavit not being based on personal knowledge] are waived absent a motion to 12 strike or other objection....”). 13 DISCUSSION 14 Plaintiff and Defendant Fink have both filed motions for summary judgment. D. MSJ and 15 P. MSJ. “Although not simultaneous cross motions for summary judgment, the Court addresses 16 the parties' motions for summary judgment together and considers the evidence submitted in 17 support of and opposition to both motions in ruling on the merits of each.” Mendoza v. Doe #1, 18 2019 WL 506555, at *4 (S.D. Cal., Feb. 7, 2019) (citing Fair Housing Council of Riverside Cnty., 19 Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) (“[W]hen simultaneous cross-motions 20 for summary judgment on the same claim are before the court, the court must consider the 21 appropriate evidentiary material identified and submitted in support of both motions, and in 22 opposition to both motions, before ruling on each of them.”)). 23 I. Defendant Fink’s Motion for Summary Judgment 24 Plaintiff alleges that Defendant Fink violated his Eighth Amendment right to be free from 25 cruel and unusual punishment by failing to protect Plaintiff, to intervene to stop Defendant 26 Aviles’ conduct, to adequately train or supervise Defendant Aviles, to investigate the incident, 27 and to discipline Defendant Aviles. FAC at 6-7. 28 Defendant Fink contends that the undisputed facts demonstrate that Defendant Fink 7 18cv60-BAS (BLM) 1 cannot be liable under any theory. D. MSJ at 12. 2 A. 3 Interpreting the evidence in the light most favorable to Plaintiff, Plaintiff has established 4 that his cell was searched by Defendant Aviles and Officer Sinkler on March 28, 2017 and that 5 his personal property was thrown away. P. Oppo. at 32 (Plaintiff’s Decl.). Plaintiff notified 6 Sergeant J. Alvarez about the search and Sergeant Alvarez “assured Plaintiff that the Defendants 7 had made a mistake and that he would replace all of the items and make Plaintiff, whole in his 8 loss at which he did so.” Id.; see also FAC at 3. Plaintiff states that his cell was searched again 9 on March 29, 2017, that he reported the search to Defendant Fink, and that Defendant Fink 10 gave Plaintiff a cell search receipt signed by Defendant Aviles and Officer Sinkler.2 Id. at 32-33; 11 see also ECF No. 47 at 2 (missing page from Plaintiff’s Declaration In Support of Motion for 12 Summary Judgment accepted on discrepancy). Plaintiff told Defendant Fink that he believed 13 the search was performed to harass him and not due to any prison security needs and that 14 Defendant Aviles was “taunting” him. P. Oppo. at 32-34. Plaintiff also states that on March 31, 15 2017, Defendant Aviles “taunted and threatened me and challenged me to a duel if I went to 16 the small management yard.” Id. at 33. Defendant Aviles then pretended to act as though he 17 was mentally challenged3 near the small management yard located in front of Defendant Fink’s 18 19 Plaintiff also declares that he spoke to the “Direct Supervisor of Administrative Segregation housing unit during his visitation of Inmates assigned to disciplinary detention about officer Aviles [and] Sinkler[‘s] harrasment [sic],” but he does not say if the identified Supervisor was Defendant Fink or another person. P. Oppo. at 33 (Plaintiff’s Decl.). Plaintiff also does not declare that he complained of physical violence or threats of physical violence from Defendant Aviles during that conversation. Id. 20 21 22 23 24 25 26 27 28 The Parties’ Evidence 2 The Court notes that Plaintiff’s complaints about Defendant Aviles taunting him and mocking those with mental health issues do not constitute constitutional violations. See Sutton v. Ruiz, 2014 WL 1671492, at *6 (E.D. Wash., Apr. 28, 2014) (finding that plaintiff’s claims that he was “subjected to constant teasing, bullying, harassment, and possible threats' [sic] to his well being, and that he suffer[ed] daily from the constant teasing, and taunts' [sic] of other Prisoners' / Offenders'” did not state a claim for a violation of the Eighth Amendment) (citing Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (“[V]erbal harassment generally does not violate the Eighth Amendment.”); see also Ward v. Rich, 2012 WL 6949263, at *6 (C.D. Cal., Sept. 26, 2012) (“Verbal abuse alone does not rise to the level of a constitutional violation”) (citing Oltarzewski 3 8 18cv60-BAS (BLM) 1 office and in the view of the Administrative Segregation Unit’s cameras. Id. Finally, Plaintiff 2 states that when he was ready to leave the small management yard around 12:00 p.m., he 3 placed his wrists in the “cuff port” to enable Defendant Aviles to apply the required waist 4 restraint to transfer Plaintiff from the yard to his cell. FAC at 5; P. Oppo. at 33. Plaintiff declares 5 that Defendant Aviles “immediately began yanking and pulling [Plaintiff’s] hands and arms out 6 of the food port” and opines that he did so “maliciously and sadistically” causing pain and injury. 7 Id. Plaintiff does not declare that Defendant Fink observed Defendant Aviles’ conduct.4 P. Oppo. 8 at 31-34; FAC at 3-7. 9 Defendant Fink declares that (1) he was not present when Plaintiff was restrained by 10 Defendant Aviles, (2) before the March 31, 2017 incident, he was not aware of any physical 11 confrontations between Defendant Aviles and Plaintiff, (3) he did not observe Defendant Aviles 12 use force against or come in contact with Plaintiff on March 31, 2017, (4) before March 31, 2017 13 Plaintiff never told Defendant Fink that he was concerned about a physical threat from Defendant 14 Aviles, and (5) Defendant Fink had no knowledge of Defendant Aviles using excessive force or 15 being disciplined for excessive use of force. ECF No. 41-4, Declaration of T. Fink in Support of 16 Motion for Summary Judgment (“Fink Decl.”). 17 18 19 20 21 22 23 24 25 26 27 28 v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (verbal harassment or abuse is not sufficient to state a constitutional deprivation under § 1983) (citations omitted); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (alleged verbal abuse, harassment, or arbitrariness by prison officials towards inmate does not qualify as “punishment” within the meaning of the Eighth Amendment's prohibition of cruel and unusual punishment); and Somers v. Thurman, 109 F.3d, 614, 622 (9th Cir. 1997) (“We are mindful of the realities of prison life, and while we do not approve, we are ‘fully aware that the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation's prisons.’ ”) (citation omitted). Plaintiff states that he told Defendant Fink about this incident and opines that based on Plaintiff’s prior harassment complaints, Defendant Fink should have known that Defendant Aviles presented an unreasonable risk of serious harm to Plaintiff. FAC at 6. Plaintiff further declares that Defendant Fink was the “direct supervisor of the Administrative Segregation housing unit at which he was able to read the log books and is aware of cell searchs [sic] also other supervisors such as J. Alvarez, made him aware of ongoing discrepancies.” P. Oppo. at 34. Finally, Plaintiff declares that he told Defendant Fink on March 29, 2017 that Defendant Aviles was “taunting” him and harassing him by conducting unnecessary cell searches.” Id. 4 9 18cv60-BAS (BLM) 1 B. Deliberate Indifference 2 1. Legal Standard 3 Under the Eighth Amendment, prison officials must “take reasonable measures to 4 guarantee the safety of the inmates.” Lemons v. A. Camarillo, 2017 WL 3492146, at *5 (S.D. 5 Cal. Aug. 15, 2017) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); (citing DeShaney 6 v. Winnebago County Dep't of Social Services, 489 U.S. 189, 199-200 (1989) (“[W]hen the State 7 takes a person into its custody and holds him there against his will, the Constitution imposes 8 upon it a corresponding duty to assume some responsibility for his safety and general well- 9 being.”)). To establish a violation of this duty, an inmate “must show that he is incarcerated 10 under conditions posing a substantial risk of serious harm” and that the prison official acted with 11 “deliberate indifference” to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 833 12 (1994). Additionally, because “only the unnecessary and wanton infliction of pain implicates the 13 Eighth Amendment,” evidence must exist to show the defendant acted with a “sufficiently 14 culpable state of mind.” Lemons, 2017 WL 3492146, at *5 (quoting Wilson v. Seiter, 501 U.S. 15 294, 297 (1991) (internal quotation marks, emphasis and citations omitted)) and (citing Hudson, 16 503 U.S. at 5, 8)). 17 In a failure to protect case, a sufficiently culpable state of mind “is one of ‘deliberate 18 indifference’ to inmate health or safety.” Lemons, 2017 WL 3492146, at *5 (quoting Farmer, 19 511 U.S. at 834). Deliberate indifference to an inmate’s well-being is shown when prison officials 20 know of and consciously disregard an excessive risk of harm to an inmate’s health or safety. 21 Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference 22 could be drawn that a substantial risk of serious harm exists, and he must also draw the 23 inference.” Id. An inmate is not required to show that prison officials believed the serious harm 24 would occur. Id. at 842. “[I]t is enough that the official acted or failed to act despite his 25 knowledge of a substantial risk of serious harm.” Id. A prison official's knowledge of the risk 26 “can be proven through circumstantial evidence, such as by showing that the risk was so obvious 27 that the official must have known about it.” Stone v. Nielsen, 2018 WL 1512592, at *5–6 (D. 28 Idaho Mar. 27, 2018) (quoting Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004)). Mere 10 18cv60-BAS (BLM) 1 negligent failure to protect a prisoner from assault does not comprise a constitutional violation. 2 See Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). 3 “A prison official can violate a prisoner's Eighth Amendment rights by failing to intervene.” 4 Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). “[H]owever, officers can be held liable 5 for failing to intercede only if they had an opportunity to intercede.” Campbell v. Murrietta, 6 2015 WL 5997169, at *3 (C.D. Cal. May 22, 2015) (quoting Cunningham v. Gates, 229 F.3d 7 1271, 1289 (9th Cir.2000), as amended (Oct. 31, 2000); see also Richards v. Foutch, 2014 WL 8 4449822 at *7 (C.D. Cal. Sept. 9, 2014). (“A prison official may be held liable for such failure to 9 intervene, however, only if the official was aware that the inmate faced a specific risk of harm 10 from the other prison official's use of excessive force and had a reasonable opportunity to 11 intervene to stop it.”)). 12 2. Analysis 13 After considering all of the evidence, the Court finds there is not a triable issue of fact 14 regarding Plaintiff’s constitutional claim that Defendant Fink failed to protect him. The 15 undisputed evidence is that prior to March 31, 2017, Defendant Fink did not know that Defendant 16 Aviles presented an excessive risk of harm to Plaintiff. While Plaintiff’s evidence could support 17 a finding that Defendant Fink was aware of cell searches by Defendant Aviles that Plaintiff found 18 to be harassing and unnecessary, the evidence does not support a finding that Defendant Fink 19 was aware of an excessive risk to Plaintiff’s safety from Defendant Aviles that he ignored or 20 consciously disregarded. Moreover, Plaintiff’s assertion that Defendant Fink should have known 21 of such a risk because other officers told him or because he had access to log books is 22 inadmissible hearsay and improper speculation. Even interpreting the evidence in the light most 23 favorable to Plaintiff, Plaintiff has not presented evidence creating a genuine issue of material 24 fact that Defendant Fink knew of and consciously disregarded an excessive risk of harm to 25 Plaintiff. 26 With respect to failing to intervene, it is undisputed that Defendant Fink was not present 27 when Defendant Aviles allegedly injured Plaintiff by yanking and pulling on the chains of his 28 restraints. See FAC at 5-6; see also D. MSJ at 14 (“Fink was not personally involved in Aviles’s 11 18cv60-BAS (BLM) 1 alleged actions”), and ECF No. 41-2, Declaration of Christopher H. Findley in Support of 2 Defendant Fink’s Motion for Summary Judgment (“Findley Decl.”) at Exh 1 (Plaintiff’s Deposition 3 Testimony stating “so Fink was at the facility on March 31st? [] Right. [] but he didn’t see Aviles 4 pull on your chains? No.”). There is no evidence that Defendant Fink was aware of the assault 5 as it was occurring or that he had a reasonable opportunity to intercede and stop the assault. 6 Plaintiff himself admits this. See P. Oppo. at 8 (“Defendant Fink was not present and in a 7 position to intervene when Officer Aviles use[d] excessive force”). 8 Because Plaintiff has failed to satisfy his burden and no facts have been provided 9 establishing a genuine issue for trial, the Court RECOMMENDS GRANTING Defendant Fink’s 10 motion for summary judgment as to Plaintiff’s claim of deliberate indifference based on a failure 11 to protect or intervene. 12 C. Supervisory Liability 13 Plaintiff alleges that Defendant Fink violated his Eighth Amendment right to be free from 14 cruel and unusual punishment by failing to “adequately train custody staff in the appropriate 15 use of force, by his failure to supervise Defendant and by his failure to investigate the incident 16 or discipline the Defendant.” FAC at 7. Plaintiff also states that “Defendant Fink failed to 17 properly train Defendant Aviles to ensure that he do[es] not use excessive force against 18 prisoners who have not done anything to provoke the use of force.” Id. Plaintiff does not 19 provide any additional facts regarding how Defendant Fink allegedly failed to train or supervise 20 Defendant Aviles. FAC. In his motion for summary judgment, Plaintiff argues that Defendant 21 Fink “failed to remedy the wrong by keeping Defendant F. Aviles away from Plaintiff” and 22 permitted “the continuance of Defendant F. Aviles[’] misbehavior and unprofessional conduct.” 23 P. MSJ at 9. 24 Defendant F. Aviles who committed wrongful acts.” Id. Plaintiff concludes that Defendant Fink “was grossly negligent in supervising 25 Defendant Fink contends that he cannot be liable a Defendant Aviles’ supervisor as there 26 is not respondeat superior liability under 1983 and there is no evidence to support any other 27 claim. D. MSJ at 14-15. 28 /// 12 18cv60-BAS (BLM) 1 1. 2 “Supervisors may not be held liable under Section 1983 for the actions of subordinate 3 employees based on respondeat superior or vicarious liability.” Gomez v. Paramo, 2018 WL 4 3642175, at *5 (S.D. Cal., Aug. 1, 2018) (citing Crowley v. Bannister, 734 F.3d 967, 977 (9th 5 Cir. 2013)).5 A supervisor may be individually liable under § 1983 “if there exists either (1) his 6 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 7 between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 8 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 9 To be held liable, a supervisor need not be physically present when the alleged constitutional 10 injury occurs nor be “directly and personally involved in the same way as are the individual 11 officers who are on the scene inflicting constitutional injury.” Starr, 652 F.3d at 1205 (citation 12 omitted). Rather, the requisite causal connection is established when a supervisor “set[s] in 13 motion a series of acts by others,” or “knowingly refus[es] to terminate a series of acts by others 14 which [the supervisor] knew or reasonably should have known would cause others to inflict a 15 constitutional injury.” Id. at 1207-08 (citation omitted). A supervisor may also be held liable 16 for his “own culpable action or inaction in the training, supervision, or control of his subordinates, 17 acquiescence in the constitutional deprivation,” or “conduct that showed a reckless or callous 18 indifference to the rights of others.” Id. at 1208 (citation omitted). Additionally, a supervisor 19 may be held liable if he implements a “policy so deficient that the policy itself is a repudiation of 20 constitutional rights and is the moving force of the constitutional violation.” Hansen, 885 F.2d 21 at 646 (internal quotation marks and citation omitted). 22 /// 23 24 25 26 27 Legal Standard See also Lacy v. County of San Diego, 2012 WL 4111507, at *5 (S.D. Cal., Sept. 18, 2012) (“Supervisory personnel are generally not liable under section 1983 for the actions of their subordinates on a theory of vicarious liability, and there is no respondeat superior liability for supervisors under the statute.”) (citing Hansen v. Black, 852 F.2d 642, 645–46 (9th Cir.1989)). 5 28 13 18cv60-BAS (BLM) 1 2. Analysis 2 Contrary to Plaintiff’s argument, his declaration is not in conflict with Defendant Fink’s 3 declaration and does not present a “different story.” P. Oppo. at 5. Plaintiff declares that he 4 informed Defendant Fink that his cell had been searched by Defendant Aviles on March 29, 2017 5 for the purpose of harassing Plaintiff, but does not declare that he informed Defendant Fink of 6 any physical harm or threats that he received from Defendant Aviles prior to the March 31, 2017 7 incident. P. Oppo. at 32-33. This does not conflict with Defendant Fink’s declaration that he 8 was not aware of any past physical confrontations between [Defendant] Aviles and [Plaintiff]” 9 and that Plaintiff never informed him that “he was concerned about any physical threat from 10 Defendant Aviles.” Fink Decl. at 3. Defendant Fink does not claim to be unaware of the March 11 29, 2017 search about which Plaintiff complained. Id. Additionally, the fact that Plaintiff was in 12 the small management yard which was located in front of Defendant Fink’s office when 13 Defendant Aviles was pretending to be mentally challenged, is not evidence of Defendant Fink’s 14 liability. P. Oppo. at 33. It also is mere speculation that Defendant Fink’s assumed access to 15 “log books” or cell search activity and discrepancies means Defendant Fink was aware of or 16 recklessly indifferent to harm that Plaintiff might experience at the hands of Defendant Aviles. 17 Defendant Fink does not dispute that he was aware of Plaintiff’s complaints about the cell 18 searches, only that he did not know of a risk of violence between Plaintiff and Defendant Aviles. 19 D. MSJ; see also Fink. Decl. Finally, Plaintiff’s declaration that “other supervisors such as J. 20 Alverez, made [Defendant Fink] aware of ongoing discrepancies” is speculative and not based 21 on Plaintiff’s personal knowledge and also fails to create a triable fact concerning Defendant 22 Fink’s liability. 23 a. Defendant Fink’s Failure to Train Defendant Aviles 24 Plaintiff’s first argument is that Defendant Fink violated his right to be free from cruel and 25 unusual punishment by failing to properly train Defendant Aviles on the proper use of force. 26 FAC at 6-7. To prevail on a failure to train claim, a plaintiff must show the defendant was 27 “deliberately indifferent to the need to train subordinates, and the lack of training actually caused 28 the constitutional harm or deprivation of rights.” Gleason v. Franklin, 2017 WL 3203404, at *9 14 18cv60-BAS (BLM) 1 (C.D. Cal., May 16, 2017) (quoting Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2 2014)). Additionally, “a pattern of similar constitutional violations by untrained employees is 3 ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” 4 Connick v. Thompson, 563 U.S. 51, 62 (2011). 5 Plaintiff does not provide any additional facts or evidence supporting his argument that 6 Defendant Fink failed to properly train Defendant Aviles. Plaintiff’s argument assumes that 7 Defendant Aviles used excessive force against Plaintiff without any provocation and that 8 therefore, Defendant Fink failed to properly train Defendant Aviles. This argument is speculative 9 and not supported by any facts. Plaintiff has not established that he has firsthand knowledge 10 of how Defendant Fink did or did not train his correctional officers, including Defendant Aviles. 11 Plaintiff’s speculation about the training that did or did not occur is insufficient for summary 12 judgment purposes. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or 13 oppose a motion must be made on personal knowledge, set out facts that would be admissible 14 in evidence, and show that the affiant or declarant is competent to testify on the matters 15 stated”). Moreover, Plaintiff has not established a pattern of similar constitutional violations by 16 untrained employees. In fact, Plaintiff reported the allegedly retaliatory cell search to Defendant 17 Fink on March 29, 2017 and the alleged assault occurred just two days later on March 31, 2017. 18 Given that only two days elapsed between Plaintiff’s complaint to Defendant Fink and the alleged 19 incident, Plaintiff has not and cannot establish that Defendant Fink was deliberately indifferent 20 to the need for training. Plaintiff has not presented evidence creating a triable issue of fact 21 regarding Defendant Fink’s liability based on a failure to train. 22 b. 23 Plaintiff alleges that Defendant Fink violated his Eighth Amendment right to be free from 24 cruel and unusual punishment by failing to supervise Defendant Aviles. FAC at 6-7. Plaintiff 25 argues that Defendant Fink failed to keep Defendant Aviles away from Plaintiff, permitted 26 Defendant Aviles to engage in unprofessional conduct, and “was grossly negligent in supervising 27 Defendant F. Aviles who committed wrongful acts.” P. MSJ at 9. 28 Defendant Fink’s Supervision of Defendant Aviles As stated above, “[s]upervisors may not be held liable under Section 1983 for the actions 15 18cv60-BAS (BLM) 1 of subordinate employees based on respondeat superior or vicarious liability.” Gomez, 2018 WL 2 3642175, at *5 (citing Crowley, 734 F.3d 967 at 977); see also Lacy, 2012 WL 4111507, at *5 3 (“[s]upervisory personnel are generally not liable under section 1983 for the actions of their 4 subordinates on a theory of vicarious liability, and there is no respondeat superior liability for 5 supervisors under the statute.”) (citing Hansen, 852 F.2d at 645–46). Here, Plaintiff is arguing 6 that Defendant Fink should be held liable because he was Defendant Aviles’ supervisor at the 7 time Defendant Aviles engaged in wrongful conduct. 8 respondeat superior doctrine prohibits. 9 discussed above, Plaintiff has not presented any facts supporting a finding that Defendant Fink 10 was involved in the alleged violation or caused the violation. See FAC at 5-6, P. Oppo. at 8 11 (“[a]lthough Defendant Fink was not present and in a position to intervene when Officer Aviles 12 use[d] excessive force”), D. MSJ at 14 (“Fink was not personally involved in Aviles’s alleged 13 actions”) and Findley Decl. at Exh 1 (Plaintiff’s Deposition Testimony stating “so Fink was at the 14 facility on March 31st? [] Right. [] but he didn’t see Aviles pull on your chains? No.”).6 Finally, 15 as discussed above, the undisputed evidence shows that Defendant Fink was not aware that 16 Defendant Aviles presented a physical danger to Plaintiff so there was no reason to keep them 17 separate. Fink Decl. at ¶¶ 9-10. Plaintiff has not created a triable issue of fact as to this theory 18 of liability. This argument is exactly what the Gomez, 2018 WL 3642175, at *5. Moreover, as 19 c. 20 Plaintiff alleges that Defendant Fink violated his right to be free from cruel and unusual 21 punishment by failing to investigate the March 31, 2017 incident with Defendant Aviles. FAC at 22 6-7. In order to state a claim under § 1983, the alleged conduct must deprive the claimant of 23 some right, privilege, or immunity protected by the constitution. See 42 U.S.C. § 1983. Here, 24 25 26 27 28 Defendant Fink’s Failure to Investigate Defendant Aviles Plaintiff’s motion for summary judgment does state that “Plaintiff made sergeant Fink aware of Defendant F. Aviles[‘] wrongdoings prior to the March 31, 2017 use of excessive force and participated directly in the alleged constitutional violation.” P. MSJ at 9. However, Plaintiff does not allege or provide any facts supporting the idea that Defendant Fink directly participated in the alleged deprivation of his constitutional rights. 6 16 18cv60-BAS (BLM) 1 the alleged failure to investigate, even if true, does not state a claim under § 1983 because 2 inmates do not have a constitutional right to an investigation. See also Mayes v. Frasiher, 2018 3 WL 5920830, at *4 (E.D. Cal., Nov. 13, 2018) (finding that “there is no constitutional right to 4 require prison officials to investigate an inmate's complaints” where plaintiff claimed that 5 defendants failed to investigate his claims of assault.) (citing Manzanillo v. Jacquez, 555 Fed. 6 Appx. 651, 653 (9th Cir. 2014) (finding that the “district court properly granted summary 7 judgment on Manzanillo's claim alleging that defendants failed adequately to investigate his 8 excessive force claims in violation of prison policy because that alleged failure does not constitute 9 a violation of a federal right”); Dixon v. Oleachea, 2016 WL 3538367 at *5 (E.D. Cal. 2016) 10 (stating that “a prisoner has no constitutional right to obtain an official investigation upon 11 request.”) (citing Barkey v. Reinke, 2010 WL 3893897, at *13 (D. Idaho 2010)); and Koch v. 12 Austin, 2006 WL 403818, at *5 (E.D. Cal. 2006) (finding that “Plaintiff's allegations that 13 defendants failed to accurately report and document the November 23, 2002 incident simply do 14 not give rise to a claim for relief under federal law, due process, equal protection or otherwise” 15 as Plaintiff does not have a constitutionally protected right to any particular documentation or 16 investigation.). Plaintiff has not established a triable issue of fact that Defendant Fink’s alleged 17 failure to investigate contributed to Defendant Aviles’ alleged misconduct on March 31, 2017. 18 Accordingly, Defendant Fink’s alleged failure to investigate did not deprive Plaintiff of some right, 19 privilege, or immunity protected by the constitution and can not support a constitutional 20 violation. 21 d. 22 Plaintiff alleges that Defendant Fink violated his right to be free from cruel and unusual 23 punishment by failing to properly discipline Defendant Aviles. FAC at 6-7. “A single decision by 24 a supervisor not to reprimand a subordinate officer, without more, is not sufficient to establish 25 the type of ratification that would lead to liability under § 1983.” Peschel v. City of Missoula, 26 686 F.Supp.2d 1092, 1105–1106 (D. Mont. 2009) (citing Logan v. City of Pullman Police Dept., 27 2006 WL 1148727, *3 (E.D. Wash. 2006). “[A] plaintiff must also show the supervisor “was 28 deliberately indifferent to acts by others which he knew or reasonably should have known would Defendant Fink’s Failure to Discipline Defendant Aviles 17 18cv60-BAS (BLM) 1 cause others to inflict [plaintiff's] alleged constitutional injuries.” Id. (quoting Logan, at *4). 2 “Without something more, [a supervisor's] discipline decisions after the incident does not satisfy 3 this deliberate indifference standard.” Id. (quoting Logan, at *4) (emphasis in original); see 4 also Kanae v. Hodson, 294 F.Supp.2d 1179, 1191 (D.Haw.2003) (requiring “something more” 5 than a mere failure to discipline). Here, there is no evidence or facts supporting the argument 6 that Defendant Fink’s failure to discipline Defendant Aviles “was a conscious, affirmative choice 7 to ratify” Defendant Aviles’ allegedly unconstitutional conduct. Id. (quoting Logan, at *4). In 8 addition, given that only two days passed between Plaintiff’s complaints to Defendant Fink 9 regarding the allegedly inappropriate cell searches and the alleged assault by Defendant Fink, 10 Plaintiff has not established a triable issue of fact that Defendant Fink’s alleged failure to 11 discipline contributed to Defendant Aviles’ alleged misconduct on March 31, 2017. 12 Defendant Fink’s failure to discipline Defendant Aviles for the alleged assault on March 31, 2017 13 cannot provide constitutional liability because the decision occurred after the incident. And, 14 e. Unconstitutional Policy 15 A supervisor may be held liable under § 1983 if he or she implements a “policy so 16 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of 17 the constitutional violation.” Hansen, 885 F.2d at 646. Here, Plaintiff does not allege or submit 18 evidence that Defendant Fink implemented any such policy. Plaintiff does not identify a specific 19 policy that resulted in the alleged constitutional violations and there are no facts establishing a 20 policy that violated Plaintiff’s constitutional rights. 21 f. Conclusion 22 Plaintiff has not submitted evidence that creates a genuine issue of material fact 23 concerning Defendant Fink’s alleged failure to supervise, train, investigate, or discipline 24 Defendant Aviles, the existence of a custom or practice that would otherwise give rise to 25 potential liability or establish a causal connection between Defendant Fink and the alleged 26 constitutional violation, or the implementation of a “policy so deficient that the policy itself is a 27 repudiation of constitutional rights and is the moving force of the constitutional violation.” 28 Hansen, 885 F.2d at 646; see also FAC, and P. Oppo. Accordingly, the Court RECOMMENDS 18 18cv60-BAS (BLM) 1 that Defendants’ motion for summary judgment regarding Plaintiff’s claims against Defendant 2 Fink based on supervisory liability be GRANTED. 3 D. 4 Defendants argue that summary judgment also should be granted in favor of Defendant 5 Fink because Plaintiff failed to exhaust his administrative remedies. D. MSJ at 15-18. Defendants 6 argue that Plaintiff only filed one appeal related to the March 31, 2017 incident and the appeal 7 did not mention Defendant Fink or contain allegations that could be construed against Defendant 8 Fink. Id. at 15. Defendants note that the prison appeals system was available to Plaintiff who 9 was able to exhaust his appeal against the other Defendants and who has filed approximately 10 11 12 13 Failure to Exhaust one hundred appeals since being incarcerated. Id. at 17. Plaintiff contends that he has satisfied the exhaustion requirement. P. Oppo. at 3, 33 (Plaintiff’s Decl. ¶ ¶ 9-10). 1. Legal Standard a. The Prison Litigation Reform Act 14 15 16 17 18 The Prison Litigation Reform Act (“PLRA”) of 1995 provides that: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available, are exhausted. 19 20 42 U.S.C. § 1997e(a). “Congress enacted § 1997e(a) to reduce the quantity and improve the 21 quality of prisoner suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). The United States 22 Supreme Court has confirmed that exhaustion is a mandatory prerequisite to filing suit in federal 23 court. Id. Failure to exhaust may not be waived. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) 24 (“[e]xhaustion is no longer left to the discretion of the district court”). The United States 25 Supreme Court has stated that “[t]here is no question that exhaustion is mandatory under the 26 PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 27 211 (2007). 28 19 18cv60-BAS (BLM) 1 To prevail on a motion for summary judgment, the defendant must prove that the plaintiff 2 failed to properly exhaust available administrative remedies. Albino, 747 F.3d at 1172; see also 3 Jones, 549 U.S. at 216 (inmates are not required to specifically plead or demonstrate exhaustion 4 in his or her complaint because failure to exhaust is an affirmative defense under the PLRA). 5 The defendant cannot demonstrate an absence of exhaustion unless some relief remains 6 available. Brown v. Valoff, 422 F.3d 926, 936–37 (9th Cir. 2005). Therefore, the defendant 7 must produce evidence that the plaintiff did not properly exhaust a remedy that is available as 8 a practical matter in that it must be capable of use or at hand. Albino, 747 F.3d at 1171. 9 Once the defendant meets that burden, the plaintiff must “come forward with evidence 10 showing that there is something in his particular case that made the existing and generally 11 available administrative remedies effectively unavailable to him.” Id. at 1172. The Ninth Circuit 12 has consistently held that administrative remedies were unavailable where the inmate was 13 thwarted by affirmative misconduct or obstruction by prison officials. See Sapp v. Kimbrell, 623 14 F.3d 813, 823 (9th Cir. 2010) (screening out an inmate’s administrative grievance for improper 15 reasons rendered administrative remedies unavailable) superseded by statute on other grounds 16 as stated in Avery v. Paramo, 2015 WL 4923820, at n.14 (S.D. Cal. Aug. 18, 2015); see also 17 Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (a prison warden’s mistake in misdirecting 18 the inmate rendered administrative remedies unavailable). However, an inmate who did not 19 make any attempt to properly utilize the prison grievance system cannot sidestep the exhaustion 20 requirement by arguing that it now would be futile to attempt to exhaust within the prison 21 system. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e stress the point … that we will 22 not read futility or other exceptions into statutory exhaustion requirements where Congress has 23 provided otherwise.”); see also Woodford, 548 U.S. at 83–84, 100 (explaining that the PLRA 24 exhaustion requirement is not satisfied if the inmate files an “untimely or otherwise procedurally 25 defective . . . appeal,” and “if the party never pursues all available avenues of administrative 26 review, the person will never be able to sue in federal court”). 27 Accordingly, “to properly exhaust administrative remedies prisoners must ‘complete the 28 administrative review process in accordance with applicable procedural rules,’” defined by the 20 18cv60-BAS (BLM) 1 specific prison grievance process in question. Jones, 549 U.S. at 218 (2007) (quoting Woodford, 2 548 U.S. at 88). “Proper exhaustion demands compliance with an agency’s deadlines and other 3 critical procedural rules because no adjudicative system can function effectively without 4 imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90– 5 91. This requirement serves PLRA’s purpose because it “gives prisoners an effective incentive 6 to make full use of the prison grievance process and accordingly provides prisons with a fair 7 opportunity to correct their own errors.” Id. at 94. Therefore, an inmate incarcerated in CDCR 8 must comply with all the regulations and procedures of California’s prison administrative appeals 9 system to properly exhaust his claim. See Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 10 2009) (citation omitted) (“[t]he California prison system’s requirements ‘define the boundaries 11 of proper exhaustion’” for inmates suing in California). b. California Regulations 12 13 To properly exhaust available remedies for an administrative decision or perceived 14 mistreatment in California, an inmate must proceed through three formal levels of review. See 15 Cal Code Regs. tit. 15, §§ 3084.1–3084.9. The three levels include: “(1) a first level appeal, to 16 be conducted by the division head or his or her designee;” “(2) a second level appeal, to be 17 conducted by the hiring authority or his or her designee; and (3) a third level appeal, to be 18 conducted by the Office of Appeals in Sacramento, California (formerly the Inmate Appeals 19 Branch).” Jones v. Paramo, 2013 WL 4517829, at *6 (S.D. Cal. Aug. 19, 2013); Cal. Code Regs. 20 tit. 15, §§ 3084.1, 3084.7. “The third level review constitutes the decision of the Secretary of 21 the California Department of Corrections and Rehabilitation on an appeal” and “exhausts 22 administrative remedies.” Cal. Code Regs. tit. 15, § 3084.7(d)(3). 23 The inmate must submit his or her appeal “within 30 calendar days of: (1) The occurrence 24 of the event or decision being appealed, or; (2) Upon first having knowledge of the action or 25 decision being appealed, or; (3) Upon receiving an unsatisfactory departmental response to an 26 appeal filed.” 27 accompanied by a “Rights and Responsibility Statement.” Id. § 3084.1(i)(1). “Failure to attach 28 all necessary supporting documents may result in the appeal being rejected . . . . and [t]he Id. § 3084.8(b). Any prisoner complaint alleging staff misconduct must be 21 18cv60-BAS (BLM) 1 appellant shall be allowed an additional 30 days to secure any missing supporting documents 2 and resubmit the appeal.” Id. § 3084.3. An appeal may also be cancelled if it is untimely. Id. 3 § 3084.6(c)(4). Once cancelled, the appeal shall not be accepted unless a determination is 4 made that the cancellation was made in error or new information is received making the appeal 5 eligible for further review. Id. §§ 3084.6(a)(3), 3084.6(e). A cancellation does not exhaust an 6 appeal, though a cancellation at the third level may itself be appealed. Id. §§ 3084.6(e). 7 The inmate may initiate litigation in federal court “only after the administrative process 8 ends and leaves his grievances unredressed.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th 9 Cir. 2006). “Administrative remedies shall not be considered exhausted relative to any new 10 issue, information, or person later named by the appellant that was not included in the originally 11 submitted CDCR Form 602 …, and addressed through all required levels of administrative review 12 up to and including the third level.” Cal Code Regs. tit. 15, § 3084.1(b). 13 2. 14 Defendants submitted declarations signed under penalty of perjury from E. Frijas, the 15 Appeals Coordinator at Richard J. Donovan Correctional Facility (“RJDCF”) and M. Voong, the 16 Chief of the Office of Appeals, to establish that Plaintiff had access to an administrative process 17 and failed to exhaust the available administrative remedies. See ECF No. 41-5, Declaration of 18 E. Frijas In Support of Defendants’ Motion for Summary Judgment for Failure to Exhaust 19 Administrative Remedies (“Frijas Decl.”); see also ECF No. 41-7, Declaration of M. Voong In 20 Support of Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative 21 Remedies (“Voong Decl.”). E. Frijas describes the administrative grievance process that was 22 available to Plaintiff at RJD, including that RJD records “are kept in the ordinary course of 23 business at or near the time that the [Inmate Appeals Office (“IAO”)] receives an inmate appeal.” 24 Frijas Decl. at ¶ 6. E. Frijas explained that the California Attorney General’s Office requested 25 that IAO search its files and records 26 27 28 Evidence to ascertain whether inmate Duwayne Jackson, CDCR No. 141016 (Plaintiff) submitted any appeals, between March 27, 2017 and February 26, 2018, relating to an alleged violation of Plaintiff’s rights by Defendant Fink, including any 22 18cv60-BAS (BLM) 1 2 3 4 5 6 7 8 9 10 11 12 allegations arising from failing to supervise or train correctional officer Aviles or preventing Aviles from using excessive force against Plaintiff while Plaintiff was at RJDCF. Id. at ¶ 5. A thorough search of the records revealed that On April 10, 2017, the IAO received a staff complaint appeal from Plaintiff regarding allegations of misuse of force against Correctional Officer Aviles, relating to an incident that occurred on March 31, 20 17, while Plaintiff was at RJDCF. The appeal [was] accepted for review and was assigned Appeal Log No. RJD-17-01882. On May 4, 2017, the appeal was partially granted at the Second Level of review, in that a confidential inquiry [in]to the appeal was conducted. As a result of the confidential appeal inquiry, it was found that Officer Aviles did not violate CDCR policy. Records indicate that Plaintiff submitted the appeal for a Third Level of review. On September 8, 2017, the appeal was denied at the Third Level of review. This appeal did not contain any allegations against Defendant Fink. 13 Id. at ¶ 6, Exh. A. Apart from the complaint mentioned above, the IAO “has not accepted and/or 14 processed for review any timely or properly filed appeals or staff complaint from Plaintiff relating 15 to the allegations” against Defendant Fink. Id. at ¶ 7. 16 M. Voong states that he is “personally familiar with the record-keeping system at the 17 Office of Appeals and [he] is able to verify the status of a California inmate or parolee’s third- 18 level administrative appeals.” Voong Decl. at ¶ 2. M. Voong declares that “[t]he Office of 19 Appeals receives and maintains all inmate appeals . . . accepted for the third level review for all 20 non-medical appeals, the third and final level of review in CDCR’s inmate-appeals process for all 21 non-medical appeals, and renders decisions on such appeals.” Id. at ¶ 3. M. Voong further 22 explains that “[u]pon receipt by the Office of Appeals, appeals are logged into a computer 23 database known as the Inmate Appeals Tracking System (IATS).” Id. at ¶ 5. M. Voong declares 24 the Office of the Attorney General requested that the Office of Appeals search its records to 25 locate all third-level appeals submitted by Plaintiff “between March 27, 2017 and February 26, 26 2018, relating to an alleged violation of Plaintiffs rights by Defendant Fink.” Id. at ¶ 7. M. 27 Voong explains that a thorough search of the records (by his staff) revealed that his office 28 received and accepted three staff complaints from Plaintiff during the relevant time period. Id. 23 18cv60-BAS (BLM) 1 at ¶ 8. The first appeal log received on April 20, 2017 related “to an alleged misuse of force by 2 Correctional Officers at RJDCF on January 13, 2017, in retaliation to a previous incident in which 3 Plaintiff assaulted Officer Navarro,” was denied at the Third Level of review on June 29, 2017, 4 and did not pertain to the allegations against Defendant Fink. Id. at ¶ 8(a), Exh. A. The second 5 appeal log received on June 14, 2017 discussed Plaintiff’s allegations of Defendant Aviles’ misuse 6 of force on March 31, 2017 and also was denied at the third level of review on September 28, 7 2017. Id. at ¶ 8(b), Exh. B. The final appeal log was received on September 14, 2017, related 8 “to allegations against Officers Mendoza and Osgood for failing to properly segregate inmates 9 during transport[,] was denied at the third level of review on December 11, 2017, and did not 10 pertain to the allegations against Defendant Fink. Id. at ¶ 8(c), Exh. C. Apart from these three 11 appeal logs, the Office of Appeals did “not receive[], [] accept[], or screen[] out at the Third 12 Level of review any staff complaints from Plaintiff, from March 27, 2017, to February 26, 2018 13 while at RJDCF, relating to allegations” against Defendant Fink. Id. at ¶ 9. 14 3. 15 Pursuant to Cal. Code Regs., tit. 15, § 3084.2. an inmate who is completing a CDCR Form 16 17 18 19 20 21 22 23 Analysis 602 for an appeal must list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. 24 Cal. Code Regs., tit. 15, § 3084.2. Failure to identify a Defendant in the Form 602, “bars federal 25 review as to those Defendants not named.” 26 Cal., Sept. 25, 2018) (citing Woodford v. Ngo, 548 U.S. 81, 90–91 (2006) (“Proper exhaustion 27 demands compliance with an agency’s deadlines and other critical procedural rules because no 28 adjudicative system can function effectively without imposing some orderly structure on the Carter v. Paramo, 2018 WL 4579854, at *7 (S.D. 24 18cv60-BAS (BLM) 1 course of its proceedings.”); see, e.g., Martinez v. Swift, 2015 WL 1349525, *2 (N.D. Cal. 2015) 2 (Seeborg, J.) (granting summary judgment for non-exhaustion because the grievance “does not 3 mention [defendant], or describe with any specificity his actions or words” and therefore did not 4 comply with § 3084.2(a)(3) ); Panah v. State of Cal. Dep't of Corr. and Rehabilitation, 2015 WL 5 1263494, *9–*10 (N.D. Cal. 2015) (Freeman, J.) (even if plaintiff’s failure to pursue inmate 6 appeal to highest level is excused, he failed to properly exhaust his claim against the warden 7 because his inmate appeal did not name the warden or describe the basis for his liability); Gray 8 v. Smith, 2015 WL 875482, *2–*3 (N.D. Cal. 2015) (Alsup, J.) (granting summary judgment for 9 non-exhaustion where inmate appeal described an incident at the prison but did not name the 10 warden and did not describe a widespread practice or that the warden knew of the incident and 11 failed to stop it); see also Avery v. Paramo, 2015 WL 4923820, at *11 (S.D. Cal., Aug. 18, 2015) 12 (finding that “Plaintiff's CDCR 602 Log. Nos. 13–2451 and 13–3017 would suffice to satisfy § 13 1997e(a)'s exhaustion requirement if Defendants [] were included in a list of staff members 14 involved, if they “describe[d] their involvement in the issue under appeal,” and if they included 15 the dates of each staff member's involvement” and noting that “[t]he California Code of 16 Regulations requires that Plaintiff's CDCR Form 602s “list all staff members involved,” and 17 “describe their involvement in the issue under appeal,” including the “dates of the staff member's 18 involvement.”) (quoting Cal.Code Regs. tit. 15, § 3084.2(3))). Here, the record establishes that 19 Plaintiff did not name Defendant Fink in his prison appeals. P. Oppo. at 37-45; see also Findley 20 Decl. at Exh. 2; Voong Decl. at Exh. 3, and Frijas Decl. at Exh. A. 21 The Court finds that Defendants have satisfied their initial burden of establishing that 22 Plaintiff did not properly exhaust his claim against Defendant Fink. Additionally, Defendants 23 have established that the prison appeals system was available to Plaintiff who has filed almost 24 one hundred appeals since being incarcerated and who successfully exhausted his appeal 25 against the other Defendants in the instant mater. Findley Decl. at Exh. 1; see also Voong Decl. 26 at Exh. C, and Frijas Decl. at Exh. C. Therefore the burden of production shifts to Plaintiff and 27 he must come forward with evidence showing either that he properly exhausted all available 28 administrative remedies before filing suit, or that “there is something particular in his case that 25 18cv60-BAS (BLM) 1 made the existing and generally available administrative remedies effectively unavailable to 2 him.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 3 1172). 4 Defendant’s motion for summary judgment based upon Plaintiff’s failure to exhaust the 5 administrative remedies be GRANTED. 6 II. Plaintiff has made no such showing. Accordingly, the Court RECOMMENDS that Plaintiff’s Motion for Summary Judgment 7 Plaintiff moves for summary judgment on all of his claims. P. MSJ. First, Plaintiff argues 8 that Defendant Aviles knowingly used excessive force to “maliciously and sadistically” injure 9 Plaintiff. Id. at 7-8. Second, Plaintiff argues that Defendant Fink violated his constitutional 10 rights because prior to March 31, 2017, Defendant Fink knew that Defendant Aviles was 11 harassing Plaintiff and engaging in unreasonable searches of Plaintiff’s cell and Defendant Fink 12 failed to keep Defendant Aviles away from Plaintiff. Id. at 9-10. Plaintiff further alleges that 13 Defendant Fink was “grossly negligent” in supervising Defendant Aviles. Id. at 9. Finally, 14 Plaintiff argues that Defendants Mendoza and Osgood violated his Eighth Amendment rights to 15 safety and protection by transporting him with another prisoner. Id. at 11-16. 16 Defendants oppose Plaintiff’s motion and argue that there are triable issues of material 17 fact as to the claims against Defendant Aviles, Mendoza, and Osgood and no evidence against 18 Defendant Fink so summary judgment should be granted in favor of Defendant Fink. D. Oppo. 19 A. Defendant Aviles 20 Plaintiff alleges that on March 27, 2017, Defendant Aviles searched his cell and disposed 21 of several of his personal items, including his toiletries and photographs. FAC at 3. Plaintiff 22 reported the search to Sergeant Alvarez who told Plaintiff that Defendant Aviles had made a 23 mistake and made sure the items were replaced. Id. Plaintiff next alleges that on March 28, 24 2017, Defendant Aviles performed another search of his cell for harassment purposes. Id. On 25 March 31, 2017, Defendant Aviles began verbally harassing Plaintiff and pretending as though 26 he was mentally disabled to torment Plaintiff. 27 throughout the day and challenged Plaintiff to a fight in the yard. Id. When confronted about 28 his behavior by Plaintiff, Defendant Aviles said that it was because Plaintiff “like[d] to do 26 Id. at 4. Defendant Aviles acted this way 18cv60-BAS (BLM) 1 paperwork and tell the supervisors on us.” Id. Later that afternoon, when Plaintiff was in the 2 yard, Defendant Aviles approached Plaintiff with a waist restraint to return him to his cell. Id. 3 at 5. Plaintiff alleges that after securing the restraint cuffs, Defendant Aviles tugged and pulled 4 on the chains for the purpose of causing harm to Plaintiff. Id. This caused Plaintiff to bleed and 5 he demanded to see the supervising sergeant as he refused to leave the yard with Defendant 6 Aviles. Id. at 6. Plaintiff was later seen by the medical technician due to the injuries he sustained 7 to his writs and arms. Id. 8 Plaintiff argues that summary judgment should be granted in his favor for Defendant 9 Aviles’ use of excessive force. P. MSJ at 1, 7-8. Defendants contend that Plaintiff cannot show 10 undisputed facts regarding his claim of excessive force against Defendant Aviles. D. Oppo. at 11 10. 12 1. Legal Standard 13 The Eighth Amendment prohibits prison officials from using excessive physical force 14 against inmates. Farmer, 511 U.S. at 832. The inquiry is not whether the prisoner suffered a 15 certain level of injury, but “‘whether force was applied in a good-faith effort to maintain or 16 restore discipline, or maliciously and sadistically to cause harm.’” Wilkins v. Gaddy, 559 U.S. 34, 17 37 (2010) (citation omitted); Hamilton v. Brown, 630 F.3d 889, 897 (9th Cir. 2011); see Farmer, 18 511 U.S. at 835–36 (noting that a plaintiff must allege that the defendant used force knowing 19 that harm would occur). Courts examine the following five factors to determine whether a 20 plaintiff has satisfied the malicious and sadistic standard: (1) the inmate's injury; (2) the need 21 for the use of force; (3) “‘the relationship between that need and the amount of force used; (4) 22 the threat reasonably perceived by the responsible prison officials; and (5) any efforts made to 23 temper the severity of a forceful response.’” Martinez v. Stanford, 323 F.3d 1178, 1184 (9th 24 Cir. 2003) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)); see also Whitley v. Albers, 475 25 U.S. 312, 321 (1986); Madrid v. Gomez, 889 F.Supp. 1146, 1247 (N.D. Cal. 1995). “The absence 26 of serious injury is a relevant, but not dispositive, additional factor to be considered in the 27 subjective analysis.” Nunez v. Ramirez, 2011 WL 7096611, at *7 (S.D. Cal. Nov. 14, 2011) 28 (citing Hudson, 503 U.S. at 7). [T]he use of excessive physical force against a prisoner may 27 18cv60-BAS (BLM) 1 constitute cruel and unusual punishment [even] when the inmate does not suffer serious 2 injury. See Hudson, 503 U.S. at 4. “Injury and force, however, are only imperfectly correlated, 3 and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does 4 not lose his ability to pursue an excessive force claim merely because he has the good fortune 5 to escape without serious injury.” Wilkins, 559 U.S. at 38. 6 2. Plaintiff’s Evidence 7 In support of his motion for summary judgement against Defendant Aviles, Plaintiff 8 submitted his declaration signed under penalty of perjury stating that (1) he was assaulted by 9 Defendant Aviles, (2) Defendant Aviles used excessive force against him, and (3) camera footage 10 captured Defendant Aviles’ misconduct on March 31, 2017. P. MSJ at 2, Declaration In Support 11 of Motion for Summary Judgment; see also ECF No. 47 at 2 (missing page from Plaintiff’s 12 Declaration In Support of Motion for Summary Judgment accepted on discrepancy). Plaintiff 13 also submitted a Crime/Incident Report from Defendant Aviles. P. MSJ at 19. In the document, 14 Defendant Aviles reports that after he handcuffed Plaintiff on March 31, 2017, Plaintiff began 15 “to hit his hands and wrist against the handcuff port rapidly and multiple times” and told 16 Defendant Aviles that he would “make [Defendant Aviles] catch a fucking case.” Id. Plaintiff 17 submitted a Medical Report of Injury or Unusual Occurrence form from the March 31, 2017 18 incident showing abrasions and scratches on his arm and wrists and noting that Plaintiff reported 19 being “scratched by wrist chains.” Id. at 22. Finally, Plaintiff submitted a copy of 15 CCR 3268.2 20 regarding the use of restraints. Id. at 24-25. 21 3. 22 In support of their opposition, Defendants submitted a declaration from Defendant Aviles 23 signed under penalty of perjury. Aviles Decl. Defendant Aviles declares that he “never mocked, 24 imitated, or harassed Plaintiff Duwayne Jackson[,] never challenged Jackson to a fight[, and] 25 never searched Jackson's cell for malicious reasons or to harass Jackson.” Id. at ¶ 2. Defendant 26 Aviles further declares that he did not use force on Plaintiff or cause injury to Plaintiff and that 27 28 Defendants’ Evidence On March 31, 2017, I attempted to place restraints on Jackson, in order to escort him back from the small management yard where he was exercising. Jackson 28 18cv60-BAS (BLM) 6 attempted to pull the restraints from my hand. I ordered Jackson to stop pulling the cuffs. Jackson said, "Fuck you Aviles" and started to hit his hands and wrists against the food port rapidly and multiple times. I ordered Jackson to stop hitting his hands against the food port. Jackson responded "Fuck you motherfucker, I'm a make you catch a fucking case." Jackson stopped hitting his hands and wrists and demanded to talk with Sergeant Fink. I told Jackson that I needed to remove the restraints in order for him to speak with Sergeant Fink. Jackson complied and I removed the restraints. I then left and informed Sergeant Fink what happened. 7 Id. at ¶ 3-4. Defendants also submitted excerpts from Plaintiff’s deposition testimony. ECF No. 8 49-1, Declaration of Christopher H. Findley In Support of Defendants’ Opposition to Plaintiff’s 9 Motion for Summary Judgement (“Findley Decl. 2”) at Exh. 1. In the testimony Plaintiff recounts 10 his version of the March 31, 2017 incident, explains how Defendant Aviles hurt him, and denies 11 telling Defendant Aviles that he was going to make him “catch a case.” Id. 1 2 3 4 5 12 4. 13 In deciding a motion for summary judgment, a court may not resolve conflicting evidence. 14 Soremekun, 509 F.3d at 984. Rather, summary judgment may be granted only when there is 15 no genuine issue of material fact and the moving party is entitled to judgment as a matter of 16 law. Fed. R. Civ. P. 56(a); Anderson, 477 US at 248. Plaintiff has failed to carry his initial burden 17 of demonstrating that summary judgment is proper and that no reasonable trier of fact could 18 find other than for him. 19 Analysis As an initial matter, Plaintiff himself recognizes that there are genuine disputed issues 20 regarding the material facts of his claims against Defendant Aviles. 21 declarations of the Plaintiff, and the defendants are squarely contradictory as to what force was 22 used, when it was used, and why it was used”). Additionally, apart from his declaration, none 23 of the other evidence Plaintiff submits supports his position. Defendant Aviles’ crime incident 24 report highlights the disputed facts and states that Plaintiff’s March 31, 2017 injuries were self- 25 inflicted. Id. at 19. Plaintiff’s Medical Report of Injury or Unusual Occurrence shows injuries 26 and that Plaintiff stated that he was scratched by his wrist chains, but does not provide any 27 further context about how Plaintiff came to be injured. Id. at 22. Defendants have met their 28 burden of showing that summary judgment is not appropriate. The declaration of Defendant 29 P. MSJ at 10 (“[t]he 18cv60-BAS (BLM) 1 Aviles clearly demonstrates that there are genuine issues of material facts for trial. Aviles Decl. 2 Defendant Aviles declares that he did not (1) pretend to be mentally disabled, (2) harass 3 Plaintiff, (3) search Plaintiff’s cell for malicious reasons, or (4) use excessive force on Plaintiff. 4 Id. at ¶ ¶ 2-4. For these reasons, the Court RECOMMENDS that Plaintiff’s motion for summary 5 judgment as to Defendant Aviles be DENIED. 6 B. Defendant Fink 7 Plaintiff alleges that Defendant Fink violated his Eighth Amendment right to be free from 8 cruel and unusual punishment by failing to adequately train or supervise Defendant Aviles, 9 investigate the incident, discipline Defendant Aviles, or protect Plaintiff. FAC at 6-7. 10 Defendants contend that “Plaintiff cannot establish that the undisputed facts support 11 summary judgment against Defendant Fink [and that] to the contrary the Court should grant 12 summary judgment in favor of Fink.” D. Oppo. at 11. 13 Defendant Fink submitted a declaration signed under penalty of perjury declaring that (1) 14 he was not present when Defendant Aviles restrained and allegedly injured Plaintiff, (2) he was 15 unaware of any previous physical confrontations between Plaintiff and Defendant Aviles, and (3) 16 Plaintiff never informed him of a physical threat from Defendant Aviles. Fink Decl. Defendant 17 Fink has met his burden of showing that summary judgment in favor of Plaintiff against 18 Defendant Fink is not appropriate and for the reasons set forth above [see supra at 7-26], the 19 Court instead RECOMMENDS that summary judgment be granted in favor of Defendant Fink. 20 C. Defendants Osgood and Mendoza 21 Plaintiff alleges that while he was on suicide watch in the mental health crisis bed 22 alternative housing unit on May 3, 2017, Defendant Mendoza approached his cell to escort 23 Plaintiff for transfer to a mental health crisis bed at California State Prison Lancaster. FAC at 8. 24 Defendant Mendoza escorted Plaintiff to an area where he waited and observed Defendant 25 Osgood preparing another inmate, inmate Razon, for transfer as well. Id. As Plaintiff and inmate 26 Razon were escorted to the transport van, Plaintiff asked Defendant Mendoza if he would be 27 separated from inmate Razon to which Defendant Mendoza responded, “no.” Id. Plaintiff alleges 28 that this was a violation of prison policy as he is a protective custody inmate and should remain 30 18cv60-BAS (BLM) 1 separated from general population inmates at all times. Id. After being placed in the back of 2 the transport van with inmate Razon, Plaintiff alleges that he told Inmate Razon that he was 3 “currently undergoing suicidal id[e]ation” and that he had been retaliated against in Facility C. 4 Id. at 9. At that point, inmate Razon began calling Plaintiff a “protective custody rat” and kicking 5 him. Id. This activity lasted for three hours despite Plaintiff’s screams and cries for help. Id. 6 Plaintiff also alleges that when he finally arrived at Lancaster, he heard Defendants Mendoza 7 and Osgood laughing about the fact that they transported a general population inmate with a 8 sensitive needs yard inmate. Id. at 10. 9 they were not recorded until Plaintiff later reached California State Prison in Sacramento. Id. 10 The injuries were documented on a CDCR 7219 form. Id. Plaintiff alleges that Defendants 11 Mendoza and Osgood violated his Eighth Amendment right to be free from cruel and unusual 12 punishment and that they were deliberately indifferent to the danger he faced from inmate 13 Razon. Id. Plaintiff reported that he had sustained injuries but 14 Plaintiff argues that summary judgment is in his favor against Defendants Mendoza and 15 Osgood for their deliberate indifference to his safety. P. MSJ at 1, 11-16. Defendants contend 16 that Plaintiff cannot show undisputed facts supporting summary judgment for deliberate 17 indifference against Defendants Mendoza and Osgood. D. Oppo. at 14. 18 1. 19 The appropriate legal standard for deliberate indifference to a serious risk is set forth in 20 Legal Standard Section I. B. 1 above. See supra at p. 10. 21 2. Plaintiff’s Evidence 22 In support of his motion for summary judgment, Plaintiff submitted his declaration signed 23 under penalty of perjury stating that he “was beaten for three hours by being kicked” during his 24 May 3, 2017 transport and that Defendants Mendoza and Osgood were aware of the danger of 25 placing Plaintiff in the same transport van as inmate Razon, a general population inmate. ECF 26 No. 47 at 2 (missing page from Plaintiff’s Declaration In Support of Motion for Summary 27 Judgment accepted on discrepancy). Plaintiff also submitted a copy of an Informational CDC 28 From 128-B describing his request to be placed in the sensitive needs yard. P. MSJ at 31, Exh. 31 18cv60-BAS (BLM) 1 E. 2 3. Defendants’ Evidence 3 In support of their opposition, Defendants submitted declarations from Defendant 4 Mendoza and Defendant Osgood signed under penalty of perjury. ECF No. 49-4, Declaration of 5 G. Mendoza In Support of Defendants’ Opposition to Plaintiff’s Motion for Summary Judgement 6 (“Mendoza Decl.”); see also ECF No. 49-5, Declaration of C. Osgood In Support of Defendants’ 7 Opposition to Plaintiff’s Motion for Summary Judgement (“Osgood Decl.”). Defendants Mendoza 8 and Osgood declared that they were “assigned to transport Inmate Dwayne Razon and Plaintiff 9 Duwayne Jackson from RJD to California State Prison, Los Angeles County at Lancaster (LAC).” 10 Mendoza Decl. at ¶ 2; see also Osgood Decl. at ¶ 2. Defendants Mendoza and Osgood also 11 declared that they were unaware of a CDCR policy preventing a sensitive needs yard inmate 12 from being transferred with a general population inmate and that when asked if they had any 13 problems being transferred together neither Plaintiff nor inmate Razon objected. Mendoza Decl. 14 at ¶ ¶ 3-4; see also Osgood Decl. at ¶ ¶ 3-4. Finally, Defendants Mendoza and Osgood declare 15 that the transport van that was used to move Plaintiff and inmate Razon had a camera in the 16 back which allowed Defendants Mendoza and Osgood “to monitor the inmates the entire time.” 17 Mendoza Decl. at ¶ 5; see also Osgood Decl. at ¶ 5. Either Defendant Mendoza or Defendant 18 Osgood was with the van for the duration of the transport and Defendants Mendoza and Osgood 19 never saw inmate Razon kick or attack Plaintiff. Mendoza Decl. at ¶ 6; see also Osgood Decl. 20 at ¶ 6. 21 Defendants also submitted excerpts from Plaintiff’s deposition testimony. Findley Decl. 2 22 at Exh. 1. In the testimony Plaintiff states that he protested when Defendants Mendoza and 23 Osgood tried to place him in the van and informed them that he was suicidal. Id. at 23. He 24 also reiterated the points made in his FAC and stated that inmate Razon called him a rat and 25 kicked him approximately fifteen times. Id. at 25. Plaintiff further testified that he did not seek 26 medical attention at Lancaster and that he is not aware of any rules requiring general population 27 inmates and sensitive needs yard inmate to be separated during transport, but understands it 28 to be “protocol.” Id. at 28. 32 18cv60-BAS (BLM) 1 Finally, Defendants submitted excerpts from the deposition of inmate Razon. Findley 2 Decl. 2 at Exh. 2. Inmate Razon testified that he did not hit, kick, or attack Plaintiff during the 3 May 3, 2017 transport. Id. at 39-40. Inmate Razon further testified that Plaintiff never told him 4 that he was in the sensitive needs yard and that they mostly slept during the ride and had very 5 little conversation as it was very early in the morning when they left, around 5:00 a.m. Id. 6 4. Analysis 7 Plaintiff again has failed to carry his initial burden of demonstrating that summary 8 judgment is proper and that no reasonable trier of fact could find other than for him. 9 Soremekun, 509 F.3d at 984. Plaintiff admits that there are genuine disputed issues regarding 10 the material facts of his claims against Defendants Mendoza and Osgood. P. MSJ at 16 (“[t]here 11 is clearly a genuine issue of fact.”). Additionally, apart from his declaration, none of the other 12 evidence Plaintiff submits supports his position. No one is disputing Plaintiff’s placement in the 13 sensitive needs yard and the Informational CDC From 128-B does not state that Plaintiff should 14 have been transported separately from a general population inmate. 15 Defendants have met their burden of showing that summary judgment is not appropriate. 16 The declarations of Defendants Mendoza and Osgood clearly demonstrate that there are genuine 17 issues of material facts for trial and that the claims cannot be properly decided on summary 18 judgment. Mendoza Decl. and Osgood Decl. Because there are genuine issues of material facts 19 for trial, the Court RECOMMENDS that Plaintiff’s motion for summary judgment as to 20 Defendants Mendoza and Osgood be DENIED. 21 CONCLUSION AND RECOMMENDATION 22 For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge 23 issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting 24 Defendants’ motion for summary judgment as to Defendant Fink; and (3) denying Plaintiff’s 25 motion for summary judgment. 26 IT IS HEREBY ORDERED that any written objections to this Report must be filed with 27 the Court and served on all parties no later than June 28, 2019. The document should be 28 captioned “Objections to Report and Recommendation.” 33 18cv60-BAS (BLM) 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 2 and served on all parties no later than July 19, 2019. The parties are advised that failure to 3 file objections within the specified time may waive the right to raise those objections on appeal 4 of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 5 6 IT IS SO ORDERED. Dated: 5/28/2019 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 18cv60-BAS (BLM)

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