Folta #153847 v. Van Winkle et al

Filing 237

*ORDER - IT IS ORDERED: The reference to the Magistrate Judge is withdrawn as to the Motion for Summary Judgment (Doc. 192 ) and Plaintiff's Motion to Strike Defendant Burke's Joinder (Doc. 200 ). The Motion for Summary Judgment (Doc. 192 ) is granted as to Defendant Schiavo and denied as to Defendants Basso and Contreras. Plaintiff's Motion to Strike (Doc. 200 ) is denied as moot. The remaining claims in this action are Plaintiff's Eighth Amendment claims against D efendants Burke, Basso, and Contreras. This action is referred to Magistrate Judge Deborah M. Fine to conduct a settlement conference. Counsel shall arrange for the relevant parties to jointly call Magistrate Judge Fine's chambers within 14 da ys of the date of this Order to schedule a date for the settlement conference. (See document for complete details). Signed by Senior Judge David G Campbell on 3/29/19. (SLQ) *Modified to correct file date from 4/1/19 to 3/31/19; NEF regenerated on 4/1/2019 (SLQ)(CEI).

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SKC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shawn Michael Folta,

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Plaintiff,

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ORDER

v.

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No. CV 14-01562-PHX-DGC (ESW)

Dustin Burke; Russel Contreras;
Richard Basso; and Michelle Schiavo,

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Defendants.

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Plaintiff Shawn Folta, who is represented by counsel, brought this prisoner civil

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rights action pursuant to 42 U.S.C. § 1983. Doc. 1. Defendants are current or former

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officers of the Arizona Department of Corrections (ADC). Defendants Russell Contreras,

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Richard Basso, and Michelle Schiavo move for summary judgment.

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Defendant Dustin Burke, who is separately represented, joins the Motion in part.

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(Doc. 193.) Plaintiff moves to strike Burke’s Joinder. (Doc. 200.) The Motions are fully

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briefed. (Docs. 211, 229.) No party has requested oral argument. For reasons stated below,

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the Court will grant in part and deny in part the Motion for Summary Judgment and deny

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as moot the Motion to Strike.

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I.

(Doc. 192.)

Background.

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Plaintiff is a prisoner in ADC custody. He filed this action pro se, claiming

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violations of his constitutional rights based on his alleged assault in the Arizona State

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Prison Complex (ASPC)-Eyman in Florence, Arizona. (Doc. 1.) Plaintiff alleges that on

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April 7, 2014, Correctional Officer (CO) Burke became angry with Plaintiff because

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Plaintiff quoted policy to him when he failed to give Plaintiff a proper dinner tray. (Id.

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at 3). Burke asked Sergeant Contreras to pull Plaintiff out of his cell, after which Burke

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restrained Plaintiff’s hands behind his back and pulled him into a blind spot in the hallway.

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(Id.) Burke then attacked Plaintiff from behind, pulled him up by his handcuffs, kneed him

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in the face, threw him head-first into a steel dinner cart, and punched him while he was on

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the ground. (Id.) Contreras and CO Basso helped Burke restrain Plaintiff and take him

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into an unsupervised area, and both of them witnessed the attack and failed to intervene.

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(Id. at 4-5.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff

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stated Eighth Amendment claims against Contreras, Basso, and Burke, and directed them

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to answer the claims. (Doc. 13.)

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Defendants. (Id.)

The Court dismissed the remaining claims and

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Plaintiff subsequently filed a Motion for Leave to Amend and a proposed First

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Amended Complaint (FAC), in which he sought to amend Count Three to add claims

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against CO Schiavo and Deputy Warden Jeffrey Van Winkle, who had been dismissed

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from the original Complaint. (Docs. 48, 60 at 8.) On screening of the FAC, Magistrate

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Judge Eileen S. Willet issued a Report and Recommendation (“R&R”) in which she found

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that Plaintiff stated an Eighth Amendment deliberate indifference claim against Schiavo

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based on his allegations that Schiavo opened Plaintiff’s cell door to facilitate his assault,

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but that Plaintiff failed to state a claim against Van Winkle. (Doc. 85.) The Court accepted

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the R&R, required Burke, Basso, and Contreras to answer Counts One, Two, and Three,

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required Schiavo to answer Count Three, and dismissed Van Winkle. (Doc. 104.)

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Defendants move for summary judgment based on Plaintiff’s failure to exhaust his

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administrative remedies before filing this action and on the merits of Plaintiff’s Eighth

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Amendment claims.

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II.

Summary Judgment Standard.

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A party seeking summary judgment “bears the initial responsibility of informing the

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court of the basis for its motion and identifying those portions of [the record] which it

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believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). Summary judgment is warranted where the moving

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party “shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also

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appropriate against a party who “fails to make a showing sufficient to establish the

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existence of an element essential to that party’s case, and on which that party will bear the

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burden of proof at trial.” Celotex, 477 U.S. at 322. The court need consider only the cited

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materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

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Only disputes over facts that might affect the outcome of the suit will preclude

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summary judgment, and the disputed evidence must be “such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). The evidence must be viewed in the light most favorable to the nonmoving

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party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and

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all justifiable inferences are drawn in that party’s favor because “[c]redibility

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determinations, the weighing of evidence, and the drawing of inferences from the facts are

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jury functions,” Anderson, 477 U.S. at 255.

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III.

Facts.

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The facts are taken from Defendants’ Corrected Statement of Facts (Doc. 223-1),

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Plaintiff’s Controverting Statement of Facts (Doc. 211-1), Plaintiff’s Corrected Statement

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of Additional Facts (Doc. 234-1), and the relevant exhibits in the record.1 Where the

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After Plaintiff filed his Response, Defendants filed two Notices of Errata to address
citation errors they discovered in their Motion for Summary Judgment and Statement of
Facts (Docs. 223, 224), and they attached corrected versions of both their Motion for
Summary Judgment and their Statement of Facts (Docs. 223-1, 224-1). After Plaintiff filed
an Objection to these corrected filings, arguing that Defendants were required to provide
redlined versions to show their changes, Defendants also filed redlined versions of the
originals, showing their corrections. (Docs. 231-1, 232-1.) Plaintiff also filed a Notice of
Errata in which he identified errors in his Statement of Additional Facts and attached a
Corrected Statement of Additional Facts and an additional exhibit, Exhibit P. (Docs. 234,
234-1, 234-2.) Because neither party argues that they have been prejudiced by these
submissions, the Court will cite in this Order to the corrected versions of the parties’ filings.
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parties’ versions of events differ, the Court takes Plaintiff’s facts as true. See Anderson,

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477 U.S. at 255.2

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A.

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ADC Department Order (DO) 802, Inmate Grievance Procedure, sets forth the steps

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inmates must follow to complete the administrative grievance process for medical and non-

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medical complaints. (Doc. 223-1 ¶ 1.) As the first step to resolving a non-medical issue,

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an inmate must attempt to resolve the issue informally by discussing it with appropriate

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staff or by submitting an Inmate Informal Complaint Resolution, Form 802-11. (Id. ¶ 4.)

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If the inmate is unable to resolve the issue with relevant staff through this means, he may

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submit an Inmate Informal Complaint Resolution to his Unit CO III within 10 workdays

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of the action that caused the issue. (Id. ¶ 5.) The CO III must then investigate and attempt

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to resolve the issue and provide a response to the inmate within 15 days. (Id.)

Exhaustion of Administrative Remedies.

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If the inmate’s issue is not resolved informally through these first two steps, the

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inmate may submit a formal Inmate Grievance to his Unit CO IV Grievance Coordinator

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within 5 workdays of receiving the CO III’s response to his Informal Complaint. (Id. ¶ 6.)

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An inmate may only grieve one issue per grievance form. (Id.) Within 15 days following

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receipt of the Inmate Grievance, the Deputy Warden must issue a written response to the

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Plaintiff objects to many of Defendants’ statements of fact because they contain
compound statements and because they rely on affidavit testimony of individuals
Defendants were aware Plaintiff had not deposed. (See Doc. 211-1.) Neither of these
objections is a reason to exclude Defendants’ facts. As to the compound statements,
Plaintiff does not indicate what parts of those statements, if any, he disputes. Absent more,
simply objecting to the grammatical form of a statement is not a reason to reject the asserted
facts and evidence. As to the affidavit evidence, Plaintiff does not indicate that he ever
requested or attempted to depose any of the affiants and was refused. Absent facts showing
that Defendants withheld discovery information from Plaintiff or otherwise acted in bad
faith, Plaintiff’s lack of knowledge to dispute certain facts is not a reason to prevent
Defendants from relying on those facts. Further, where Plaintiff objects to Defendants’
facts as being poorly written or inaccurate, Plaintiff largely fails to comply with Federal
Rule 56(c)(1), which requires him to indicate which facts are in dispute and to point to the
relevant parts of the record to support his contrary assertions of fact. See Fed R. Civ.
P. 56(c)(1). Absent contrary assertions with references to evidence showing a genuine
dispute, the Court will consider Defendants’ facts undisputed.
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inmate. (Id.) If the inmate receives an unfavorable response, he may appeal to the Warden

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within 5 workdays, and the Warden or the Warden’s designee has 20 workdays to issue a

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written response to the inmate. (Id. ¶ 7.)

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If the inmate does not receive a favorable resolution to his issue after completing

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these steps at the unit and institution levels, he may appeal to the Director within 5 days of

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receiving the Warden’s response. (Id. ¶ 8.) Upon receipt of an appeal to the Director, the

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Central Office Appeals Officer has 30 calendar days to prepare a response and submit it to

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the Director or the Director’s designee for a signature. (Id. ¶ 9.) The Director’s response

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is final and ends the administrative grievance process. (Id. ¶ 10.)

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If, at any time in the administrative grievance process, an inmate does not receive a

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response within the appropriate timeframe, he may proceed to the next step in the process

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the day after the response was due. (Id. ¶ 11.)

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The ADC Central Office maintains a computerized log of all non-medical Inmate

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Grievance Appeals to the Director. (Id. ¶ 12.) As part of this litigation, Officer Kepney

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searched this log for any grievances from Plaintiff regarding his allegations against

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Defendants. (Id.) Officer Kepney found that Plaintiff had fully grieved one non-medical

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grievance (Grievance #A30-131-014) against Burke for his alleged April 7, 2014 assault.

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(Id. ¶ 13; Doc. 191-2 at 28-35.) Officer Kepney claims that he did not find that Plaintiff

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had appealed any grievances to the Director’s level regarding Contreras, Basso, or

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Schiavo’s alleged actions in connection with the assault. (Doc. 223-1 ¶ 14; Doc. 191-2

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(Kepney Decl.) ¶¶ 20-22.)

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B.

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On April 7, 2014, Plaintiff and his cellmate were housed in the ASPC-Eyman

April 7, 2014 Incident.

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Special Management Unit, which is a maximum custody unit.

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Maximum custody inmates are considered the highest risk to staff and the public, and they

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are subject to controlled movement within the institution, whereby they are escorted in

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restraints by either one or two officers, depending on the circumstances. (Id.) These

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(Doc. 223-1 ¶ 18.)

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inmates also have limited work opportunities, require frequent monitoring, and eat their

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meals in their cells. (Id.)

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When two maximum custody inmates are housed together in the same cell, one

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officer must be present at the cell-front before the trap door may be opened, and two

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officers must be present at the cell-front before the cell door may be opened. (Id. ¶ 20;

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Doc. 191-5 (Basso Decl.) ¶ 5.) When removing a double-celled maximum custody inmate,

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the inmate is positively identified, and restraints are applied to both inmates in the cell

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before opening the cell door. (Id.) After both inmates are secured, the officer removing

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the inmate communicates to the Control Room Officer to unlock the cell door, the cell door

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is unlocked and opened, and the designated inmate is removed. (Id.) The cell door is then

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closed and locked, and the restraints are removed from the inmate remaining in the cell,

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while the escort of the removed inmate remains “hands on,” meaning the officer maintains

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the ability to quickly take control of an aggressive or non-compliant inmate by pulling up

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on the inmate’s secured arms, hands, or cuffs. (Id. ¶¶ 5-6.) Doing so puts pressure on the

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inmate’s shoulder joints and allows the officer to redirect the inmate to the ground or wall

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to re-establish control of the inmate. (Id. ¶ 6.) This method of responding to an aggressive

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or non-compliant inmate is standard and accepted procedure within the ADC. (Id.)

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On April 7, 2014, at approximately 7:08 p.m., Burke and CO Queen began feeding

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inmates in the unit where Plaintiff and his cellmate were housed. (Doc. 223-1 ¶¶ 18,

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32-33.) Burke wrote in a subsequent Use of Force/Incident Command Report3 that he gave

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Plaintiff his dinner tray, and Plaintiff became irate about the portion of broccoli, yelled

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In his Corrected Statement of Additional Facts (Doc. 234-1), Plaintiff frequently
relies on the contents of ADC Incident Reports. Where, as here, Plaintiff cites to Defendant
Burke’s statements in these reports, the Court will consider this evidence as the testimony
of an opposing party pursuant to Federal Rule of Evidence 801(2). Where Plaintiff relies
on other second-hand statements, including his own statements in these reports as well
those of other inmates, the Court will include this evidence because Plaintiff may be able
to present it in a form admissible at trial. Material in a form not admissible in evidence,
but which could be produced in a form admissible at trial, may be used to avoid, but not
obtain summary judgment. See Quanta Indemnity Co. v. Amberwood Dev. Inc., No. CV
11-1807-PHX-JAT, 2014 WL 1246144, at *2 (D. Ariz. March 26, 2014) (citing cases).
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profanities, threatened to go on a hunger strike, became even more irate when Burke replied

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that he was not responsible for preparing the food trays but only for delivering them, and

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asked to speak to a sergeant. (Doc. 234-1 (Pl. Statement of Additional Facts) ¶ 7; Doc.

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191-4 at 14.)

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After the inmate kitchen workers were returned to their cells or taken to the showers,

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Burke went to Contreras’s office, located in the yard office where all the supervisors’

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offices were located, and informed Contreras that Plaintiff was upset about a food portion,

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had threatened to go on a hunger strike, and had asked to speak to a supervisor. (Doc. 223-1

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¶¶ 34, 36-37.)

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Contreras thought it would be prudent to remove Plaintiff from his cell so he could

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talk to Plaintiff one-on-one to resolve the situation and/or find out the reason for the hunger

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strike. (Id. ¶¶ 37; Doc. 191-4 (Contreras Decl.) ¶ 10.) Contreras opines that removing an

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inmate from the presence of other inmates to resolve an issue prevents other inmates from

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overhearing, interjecting, or interfering, and it facilitates resolution to have the inmate away

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from the pressure to perform a certain way in front of other inmates. (Contreras Decl.

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¶ 10.) Consequently, Contreras advised Burke to take Plaintiff to the west yard holding

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cell so he could talk to Plaintiff there. (Id. ¶ 9.)

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Contreras was aware that Plaintiff had engaged in a hunger strike the week before,

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and he intended to interview Plaintiff, take him to medical to obtain his vitals, and place

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him on hunger strike status. (Id. ¶ 9.)4 As a matter of practice, Contreras asked Burke if

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the issue was personal between him and Plaintiff, and Burke purportedly replied, “No, he’s

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just upset about the food portion.” (Id. ¶ 8.)

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The “OIG Report” that Defendant Contreras cites in his declaration regarding
Plaintiff’s prior hunger strike does not appear to be in evidence. (See Contreras Decl. ¶ 9.)
The Court therefore includes Contreras’s declaration testimony regarding what he was
aware of solely to show Contreras’ belief and state of mind, not as evidence that Plaintiff
was or had been on a hunger strike, which Plaintiff disputes.

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Following Contreras’s directive, Burke proceeded back to Plaintiff’s cell.

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(Doc. 223-1 ¶ 41.) At some point, while Burke was away, Basso asked Plaintiff: “What’s

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up with you and Burke? Why is he so pissed?” (Doc. 234-1 ¶ 11; Doc. 192-2, Ex. B

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at 59-60 (Pl. Dep. at 74:19-75:6).) Another inmate returning from the kitchen also yelled

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to Plaintiff that Burke and Contreras were in the hallway discussing a plan to assault

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Plaintiff and they were going to pull him out of his cell and “f*** him up.” (see Doc. 234-1

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¶ 10; Doc. 192-2, Ex. B at 8-9 (Pl. Dep. at 23:9-24:23)).

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After Burke returned, Basso was in Plaintiff’s unit returning inmate workers to their

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cells, and he heard Burke tell Plaintiff that Contreras wanted to talk to him. (Doc. 223-1

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¶ 41.) Pursuant to regular practice for opening the cell doors of double-celled, maximum

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custody inmates, Burke and Basso were both present, and they secured both Plaintiff and

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his cellmate before signaling Schiavo, the Control Room Officer, to open Plaintiff’s cell

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door, which she did. (Id. ¶ 42.) At approximately 7:30 p.m., Burke removed Plaintiff from

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his cell, Schiavo relocked Plaintiff’s cell door, and Burke escorted Plaintiff out of the pod.

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(Id.)

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As the Control Room Officer, Schiavo locks and unlocks doors at the request of

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officers and staff, and, apart from specific circumstances such as showers and recreation,

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she generally does not know the reason an inmate is being removed from a cell or where

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he is being taken. (Id. ¶ 46.) Schiavo was unaware of the reason for removing Plaintiff

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from his cell, had no knowledge of Plaintiff’s complaint about his food, and had no reason

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to believe an incident had occurred between Burke and Plaintiff. (Id. ¶ 47.) At the time

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she unlocked and relocked Plaintiff’s cell door, she was busy doing the same for cell and

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pod doors of inmate workers returning from the kitchen. (Id.) From her position in the

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Control Room, Schiavo can see down the “runs” of the pods where prisoners are held, but

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she cannot see into individual cells. (Doc. 211-14 (Schiavo Decl.) ¶ 9.)

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After Burke escorted Plaintiff out, Basso started to return to his posted position by

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way of the hallway leading to and intersecting with the corridor where Burke had gone

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with Plaintiff. (Id. ¶¶ 42, 43.) As Basso turned the corner into the corridor, he allegedly

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turned his back on Burke, who was escorting Plaintiff in the opposite direction in a hands-

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on escort, meaning with his hand on Plaintiff’s arm. (Id. ¶ 43.)

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Shortly after this, Basso claims that he heard shoes shuffling and Burke say, “stop

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resisting.” (Id. ¶ 44.) He purportedly turned around and saw Burke redirecting Plaintiff to

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the floor and activating the incident command system (ICS). (Id.) Basso claims that he

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saw Plaintiff go directly to the floor, but did not see Plaintiff hit a wall or Burke throw,

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knee, punch, or strike Plaintiff in any way. (Doc. 191-5 (Basso Decl.) ¶ 16.)

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Upon hearing the ICS, Basso states that he immediately responded to Burke’s

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location and held Plaintiff down while CO Digiro applied lower restraints. (Doc. 223-1 ¶

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44; Basso Decl. ¶ 14.)5 Plaintiff was face-down but was attempting to turn over, and Basso

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ordered him to turn back onto his stomach. (Basso Decl. ¶ 14.) Plaintiff purportedly told

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Defendant Basso, “I’m fine just re-house me.” (Id.)

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In addition to Basso and Digiro, Contreras and COs Queen, Mwangi, and Sgt.

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Werfelman also responded to the ICS. (Doc. 223-1 ¶ 50.) Digiro and Contreras relieved

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Burke, and Contreras took command of the ICS. (Id. ¶¶ 50, 54.) After Digiro applied

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lower restraints to Plaintiff, he and Contreras lifted Plaintiff up and secured him on a

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gurney. (Id. ¶ 50.) Contreras and Sgt. Werfelman then escorted Plaintiff to the Health

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Unit, where he was examined and treated for a cut over his right eyebrow, which was closed

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with two butterfly sutures by a nurse. (Id. ¶ 55.) The next day, Plaintiff reported to

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medical, and the medical notes indicate that his left shoulder appeared swollen, his left

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knee was scraped, and he had a “very swollen area” of the right flank with limited range of

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motion, especially when bending. (Doc. 234-2.)

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When Contreras relieved Burke, he instructed him to report to the Health Unit

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because he had sustained injuries. (Id. ¶ 54.) Burke was evaluated for bruising on the top

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Basso testifies confusingly that he “immediately responded to Officer Burke’s
location and held inmate Folta down along with Digiro and removed Burke from the
incident location.” (Basso Decl. ¶ 14.) This testimony is too vague and unclear as to what
was happening and what Basso did to “remove” Burke from the location to give a useful
account of these actions.
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of his right hand and redness on the right side of his jaw. (Id.) He was taken to Florence

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Anthem Hospital for further medical evaluation. (Id.)

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At approximately 7:56 p.m., Contreras contacted Criminal Investigations Unit

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(CIU) Investigator Bill Dziadura, who took photographs of the scene and of Burke and

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Plaintiff. (Id. ¶ 57.) Burke told Contreras that Plaintiff’s actions were spontaneous, and

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Plaintiff had not exhibited any aggressive behavior as he was being restrained and removed

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from his cell. (Id. ¶ 61.)6 According to Plaintiff, no part of Plaintiff’s body hit or touched

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Defendant Burke at any time, and he did not fight back during the assault. (Doc. 231-1

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¶ 35; Doc. 192-2 at 58-59 (Pl. Dep. at 43:22-44:23).)

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Plaintiff received a disciplinary ticket for the incident, but the charges against him

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were dismissed on August 25, 2014 because Criminal Investigator Kathy Ingulli found no

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evidence to corroborate Plaintiff or Burke’s version of events. She also found that Burke’s

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story was not believable. (Doc. 211-3 at 1-2.) Ingulli also interviewed Schiavo and Basso,

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who were later found to be not forthcoming. (Id. at 2.) Ingulli also investigated another

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staff-inmate assault involving Burke, Basso, and Schiavo on June 30, 2014, after Plaintiff’s

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alleged assault. (Doc. 211-16 at 2.) During questioning about that incident, Schiavo was

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initially evasive about her knowledge and involvement in it, but after being presented with

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her own cell-phone messages about the incident, she admitted to opening the inmate’s cell

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door, allowing several officers – including Basso and Burke – to enter the cell and assault

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the inmate. (Doc. 211-16 at 2-3, 6, 9-10.) As a result of Ingulli’s findings in this

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investigation, Burke, Basso, and Schiavo’s employment with ADC was terminated. (Id.

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at 8.)

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Defendants do not put forth any facts about what these “spontaneous” actions of
Plaintiff were or any other evidence as to what prompted Defendant Burke to take Plaintiff
down.
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IV.

Discussion.

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A.

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Under the Prison Litigation Reform Act (PLRA), a prisoner must exhaust

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“available” administrative remedies before filing an action in federal court. 42 U.S.C.

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§ 1997e(a); see Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff,

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422 F.3d 926, 934-35 (9th Cir. 2005). The prisoner must complete the administrative

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review process in accordance with the applicable rules. See Woodford v. Ngo, 548 U.S.

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81, 92 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534

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U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative

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Exhaustion.

process, Booth v. Churner, 532 U.S. 731, 741 (2001).

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The defendant bears the initial burden to show that there was an available

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administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d

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1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must

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demonstrate that applicable relief remained available in the grievance process). Once that

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showing is made, the burden shifts to the prisoner, who must either demonstrate that he

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exhausted administrative remedies or come forward with evidence showing that there is

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something in his particular case that made the existing and generally available

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administrative remedies effectively unavailable to him. Albino, 747 F.3d at 1172. The

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ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate

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if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a

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failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a).

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If the defendants move for summary judgment for failure to exhaust and the

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evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies,

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it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on

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the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary

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judgment on issue of exhaustion, but because he would have succeeded had he made such

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a motion, sua sponte grant of summary judgment was appropriate).

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Defendants argue that Plaintiff failed to exhaust his administrative remedies on his

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claims against them because his grievance records show only that he completed the

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grievance process with respect to Burke’s alleged assault, and he did not grieve his alleged

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claims against Contreras, Basso, and Schiavo. (Doc. 224-1 at 9.)

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Plaintiff argues in his Response that, because it is undisputed that he completed the

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grievance process regarding his assault, he exhausted his administrative remedies for all

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claims stemming from that assault, and he was not required to name each of the prospective

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Defendants involved in that incident before filing this lawsuit. (Doc. 211 at 11.) Plaintiff

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relies on Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009), in which the Ninth Circuit

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addressed the level of specificity inmates are required to include in their grievances for

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proper exhaustion. Griffin adopted the standard that “when a prison’s grievance procedures

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are silent or incomplete as to factual specificity, ‘a grievance suffices [for exhaustion

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purposes] if it alerts the prison to the nature of the wrong for which redress is sought.’” Id.

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(quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). The Ninth Circuit reasoned

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that this standard “advances the primary purpose of a grievance: to notify the prison of a

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problem.” Griffin, 557 F.3d at 1120.

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A review of Plaintiff’s grievances shows that, in his Informal Complaint Resolution,

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Plaintiff wrote that he was “informally trying to resolve the issue of being assaulted by

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CO II Burke on 4-7-14” and that his resolution was “for CO II Burke to be fired, and for

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retaliation to stop against me for reporting him.” (Doc. 191-2 at 35.) Later, in Plaintiff’s

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formal Inmate Grievance (“Grievance #A30-131-014”), Plaintiff additionally stated that

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he was “assaulted by CO II Burke, and Sgt. Contreras let him pull me out to do it.” (Id.

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at 33.)

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At a minimum, therefore, Grievance #A30-131-014 would have put prison staff on

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notice that both Burke and Contreras were involved in the alleged assault. Defendants’

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non-exhaustion defense as to Contreras is therefore unfounded. Additionally, as to Schiavo

27

and Basso, Defendants do not point to any requirement in ADC’s grievance policies that

28

prisoners must identify each prison official involved in an incident to satisfy the grievance

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process; nor do the grievance forms Plaintiff submitted in this action contain such a

2

requirement. (See Doc. 211-3 at 16, 18.) Absent any such directives, Plaintiff was not

3

required to identify each person he later named as a Defendant, so long as he provided

4

enough facts “to put prison staff on notice to investigate a particular harm and take

5

corrective action.” Griffin, 557 F.3d at 1120; see Jones v. Bock, 549 U.S. 199, 219 (2007)

6

(explaining that “exhaustion is not per se inadequate simply because an individual later

7

sued was not named in the grievances”); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

8

2005) (finding that the plaintiff satisfied the PLRA’s exhaustion requirement where he

9

described the problem and “[t]he form did not require identification of any specific

10

persons”); McCoy v. L.A. Cty. Sheriff’s Dep’t, No. CV 09-0093-GHK DTB, 2010 WL

11

330235, at *6 (C.D. Cal. Jan. 18, 2010) (“Plaintiff is not required to name specific

12

individuals or to set forth all the facts relevant to each of his claims, as long as his inmate

13

grievance is adequate to provide officials with notice of the alleged harm.”) (citing Jones,

14

549 U.S. at 218; Butler, 397 F.3d at 1183).

15

In this case, identifying the alleged April 7, 2014 assault in Grievance #A30-131-

16

014 was sufficient “to notify the prison of a problem” (i.e., the assault) and enable them to

17

investigate and attempt to rectify the harm – including any possible misconduct of Basso

18

and Schiavo, who were not specifically named in that Grievance. See Griffin, 557 F.3d

19

at 11120.

20

conducted interviews with and/or identified relevant actions of all Defendants in this

21

action, including Basso and Schiavo. (See Docs. 211-12, 211-15.) Plaintiff’s complaint

22

about the assault in Grievance #A30-131-014 was therefore sufficient to put ADC staff on

23

notice of the possible misconduct of these Defendants, and his undisputed pursuit of this

24

grievance to the Director’s level satisfies the exhaustion requirement as to Plaintiff’s

25

Eighth Amendment claims against all Defendants. Accordingly, the Court will grant

Tellingly, in ADC’s criminal investigation of the same incident, Ingulli

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27
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summary judgment to Plaintiff on exhaustion and will deny Defendants’ Motion for

2

Summary Judgment in this respect. See Albino, 747 F.3d at 1176.7

3

B.

4

Defendants make a number of overlapping First and Eighth Amendment-based

5

arguments in their Motion for Summary Judgment, many of which are not relevant to the

6

merits of Plaintiff’s claims against Contreras, Schiavo, and Basso.

The Merits.

7

For instance, Defendants devote much of their Motion to First Amendment

8

retaliation arguments (see Doc. 224-1 at 10, 14-18), when the Court found that Plaintiff

9

stated only Eighth Amendment claims against Burke, Basso, and Contreras in the original

10

Complaint (see Doc. 13 at 5), and he restated these claims and made an additional Eighth

11

Amendment deliberate indifference claim against Schiavo in the FAC. (Docs. 85, 104.)

12

Defendants’ Eighth Amendment-based arguments also miss the mark because they

13

simply argue that there is no evidence Contreras, Schiavo, and Basso took part in the

14

assault, therefore Plaintiff cannot show they used excessive force against him. (Doc. 224-1

15

at 13:19-21, 14:13-15, 14:25-26, 15:20-21.) But the sole use of physical force alleged in

16

the pleadings and noted by the Court on screening is Burke’s alleged assault on Plaintiff.

17

(See Docs. 1 & 60 at 3-5; Doc. 13 at 3-4.)

18

Plaintiff’s claims against Defendants, on the other hand, are based on his allegations

19

that Contreras and Basso brought Plaintiff to the hallway where Burke attacked him, they

20

failed to intervene or otherwise stop the attack (see Doc. 13 at 4), and Defendant Schiavo

21

opened Plaintiff’s cell door knowing that an assault would occur (see Doc. 85 at 6). These

22

claims are not based on excessive-use-of-force, but on deliberate indifference to a

23

substantial threat to Plaintiff’s safety or failure to protect, which Defendants do not

24

specifically discuss in their Motion.

25
26
27
28

7

To the extent Defendants claim that Plaintiff failed to exhaust as to each separate
legal theory presented in the FAC, this argument is unavailing because “[a] grievance need
not include legal terminology or legal theories unless they are in some way needed to
provide notice of the harm being grieved.” Griffin, 557 F.3d at 1120
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Because Defendants have produced relevant evidence bearing on the threat to safety

2

claims in their Statement of Facts and in scattered places throughout Motion, to which

3

Plaintiff has responded on the merits, and because Defendants have addressed the relevant

4

legal standard in their Reply (see Doc. 229 at 7-8), the Court will address whether they

5

have met their initial burden on summary judgment as to Plaintiff’s Eighth Amendment

6

threat to safety claims.

7

1.

Legal Standard.

8

To state a claim for threat to safety, an inmate must allege facts to support that he

9

was incarcerated under conditions posing a substantial risk of harm and that prison officials

10

were “deliberately indifferent” to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33

11

(1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support

12

that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837.

13

As to the knowledge component, “the official must both [have been] aware of facts from

14

which the inference could be drawn that a substantial risk of serious harm exist[ed], and he

15

must also [have] draw[n] the inference.” Id. Thus, Plaintiff must allege facts to support

16

when and how any particular Defendant knew of a substantial risk of harm to Plaintiff and

17

that the Defendant disregarded or failed to take steps to protect Plaintiff.

18

2.

Defendant Contreras.

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Defendants argue that Plaintiff’s Eighth Amendment claim against Contreras fails

20

because there is no evidence Contreras knew of and deliberately disregarded an excessive

21

risk of harm to Plaintiff. (Docs. 224 at 1, 229 at 10.) Rather, Defendants’ evidence shows

22

that Contreras was not advised of any verbal confrontation between Burke and Plaintiff

23

prior to his directing Defendant Burke to escort Plaintiff from his cell. (Doc. 223-1 ¶ 57.)

24

Additionally, when he specifically asked Burke as a matter of practice whether there was

25

anything personal between Burke and Plaintiff, Burke replied, “No, he’s just upset about

26

the food portion.” (Id. ¶ 38.)

27

Although this evidence is sufficient to meet Defendants’ initial burden of showing

28

that Contreras was not aware of the risk of harm to Plaintiff prior to the assault, the record

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contains sufficient evidence to create a material dispute of fact that Contreras knew about

2

Burke’s verbal dispute with Plaintiff and had reason to believe Burke would harm Plaintiff

3

before he ordered Burke to escort Plaintiff out of his cell. Based on Burke’s account in his

4

Use of Force/Incident Command Report, when Burke delivered Plaintiff’s his dinner tray,

5

Plaintiff “became irate” about the portion of broccoli, yelled profanities toward Burke,

6

threatened a hunger strike, and became “even more irate” and asked to speak to a sergeant

7

when Burke told him “I don’t make the trays I just deliver them.” (Doc. 211-9 at 2.) Burke

8

then “exited the cluster to brief Sgt. Contreras.” (Id.) Additionally, while Burke was away,

9

Basso asked Plaintiff, “What’s up with you and Burke? Why is he so pissed?” (Doc. 234-1

10

¶ 11; Doc. 192-2 at 59:19-60:6.) Taken together, this evidence suggests that Burke became

11

angry with Plaintiff during the verbal confrontation over the dinner tray, and he conveyed

12

this to Contreras when he reported the incident to him. From these facts, a jury reasonably

13

could infer that Contreras knew that ordering Burke to remove Plaintiff from his cell at that

14

time would likely lead to a violent encounter and subject Plaintiff to a substantial threat of

15

serious harm, but Contreras ignored and thereby acted with deliberate indifference to this

16

threat.

17

In addition to this evidence, Plaintiff presents evidence that, prior to the assault,

18

another inmate yelled to him that Contreras and Burke were “planning the assault in the

19

hallway outside Plaintiff’s unit.” (Doc. 234-1 ¶ 10) Even though this evidence conflicts

20

with Defendants’ evidence that Burke only spoke to Contreras in the yard office out of

21

hearing of any inmates, a reasonable jury presented with this evidence could believe

22

Plaintiff’s version of events and find in Plaintiff’s favor that Contreras intentionally plotted

23

and helped instigate the assault on Plaintiff in violation of Plaintiff’s Eighth Amendment

24

rights. Accordingly, the Court will deny Defendants’ Motion for Summary Judgment on

25

the merits as to Defendant Contreras.

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3.

Defendant Basso.

27

Defendants argue that Basso only assisted Burke in removing Plaintiff from his cell

28

and was unaware of the dispute about the meal tray between Burke and Plaintiff; therefore,

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Plaintiff cannot show that Basso ignored or was deliberately indifferent to a substantial

2

threat to Plaintiff’s safety when Burke escorted Plaintiff from his cell. (Doc. 224-1 at 19;

3

Doc. 229 at 9, 10.) Defendants also argue that even if Basso knew about the argument, this

4

is insufficient to show Burke intended to harm Plaintiff or that Basso inferred that Burke

5

would do so, and, even if he did, there is no evidence Basso could have intervened when

6

the assault occurred. (Doc. 229 at 10.)

7

Defendants’ argument that there is no evidence Basso knew about the verbal

8

altercation between Plaintiff and Burke is unavailing because, taking Plaintiff’s facts as

9

true, Basso specifically asked Plaintiff prior to the assault what was going on between

10

Burke and Plaintiff and why Burke was “so pissed.” (Doc. 234-1 ¶ 11; Doc. 192-2 at 59-60

11

(Pl. Dep. at 74:19-75:6).) A reasonable jury could infer from these facts that Basso was

12

aware when he helped Burke remove Plaintiff from his cell and watched Burke lead

13

Plaintiff down the hallway to the connecting corridor that Burke was likely to harm

14

Plaintiff, and Burke acted in deliberate disregard to this risk. Coupled with this, the

15

additional evidence in the record showing that Burke and Basso were jointly-involved in a

16

subsequent inmate assault under similar circumstances could lead a reasonable jury to

17

conclude that Defendant Basso was untruthful when he claimed to have no awareness of

18

any risk of harm to Plaintiff in this instance.8 Accordingly, questions of fact regarding

19

Basso’s knowledge and intent prior to the assault prevent the Court from concluding that

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Basso did not act with deliberate indifference to a substantial threat of serious harm to

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Plaintiff when he helped Burke remove Plaintiff from his cell, and the Court will deny

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summary judgment on the merits to Basso.

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4.

Defendant Schiavo.

24

Defendants argue that, as the Control Room Officer, Schiavo was only involved in

25

opening and closing cell doors as requested by officers and staff, and when she unlocked

26
27
28

8

Defendants make no argument that the evidence regarding the subsequent inmate
assault is inadmissible under Federal Rule of Evidence 404(b), and the Court cannot
conclude at this juncture that this evidence would be inadmissible at trial, at least to
question Basso’s credibility as to his testimony in this action.
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Plaintiff’s cell door, “she had no reason to believe that there would be an incident between

2

Officer Burke and [Plaintiff].” (Doc. 224-1 at 20.)

3

Plaintiff fails to present any controverting evidence to show that Schiavo was aware

4

of the altercation over the food tray between Burke and Plaintiff or that she had any

5

communication with Burke, Contreras, or Basso prior to opening Plaintiff’s cell door from

6

which she could have, and did, infer that doing so would lead to Plaintiff being harmed.

7

Plaintiff argues that Schiavo could see and hear the verbal altercation over the food tray

8

“because it occurred only a few feet away from her post,” but the evidence he cites does

9

not indicate where Schiavo’s post was in relation to Plaintiff’s cell or support that she could

10

see or hear activity outside Plaintiff’s cell from her position in the Control Room. (See

11

Doc. 211 at 12; Doc. 211-14 (Schiavo Decl.) ¶ 9).) Plaintiff also speculates that Schiavo’s

12

facilitation in the later inmate assault shows she acted “maliciously and sadistically to cause

13

harm” in this instance. (Doc. 211 at 12.) But absent any evidence that Schiavo knew of

14

Burke’s argument with Plaintiff or had any communication with Burke, Contreras, or

15

Basso about Plaintiff prior to unlocking Plaintiff’s cell door, this evidence is insufficient

16

to create a genuine issue of material fact that Schiavo had the requisite knowledge and

17

malicious intent to harm Plaintiff. Even if a reasonable jury could conclude from Schiavo’s

18

duplicity in the investigation of the other incident that her testimony about what happened

19

in this case is not credible, Plaintiff still bears the ultimate burden of showing Schiavo was

20

aware of facts from which she both could have, and did, infer a substantial risk of serious

21

harm to Plaintiff and she acted with deliberate indifference to that risk. Merely questioning

22

Schiavo’s credibility without producing any affirmative evidence from which to draw this

23

conclusion is insufficient for a reasonable jury to find in Plaintiff’s favor that Schiavo

24

violated Plaintiff’s Eighth Amendment rights.

25

Defendants’ Motion for Summary Judgment as to Schiavo.

Accordingly, the Court will grant

26

C.

27

Defendants argue that they are entitled to qualified immunity on Plaintiff’s claims

28

because they reasonably could have believed that their actions toward Plaintiff were

Qualified Immunity.

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1

reasonable for officers in their position. (Doc. 224-1 at 18-19.) Government officials enjoy

2

qualified immunity from civil damages unless their conduct violates “clearly established

3

statutory or constitutional rights of which a reasonable person would have known.”

4

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding if qualified immunity applies,

5

the Court must determine: (1) whether the facts alleged show the defendant’ s conduct

6

violated a constitutional right; and (2) whether that right was clearly established at the time

7

of the violation. Pearson v. Callahan, 555 U.S. 223, 230-32, 235-36 (2009) (courts may

8

address either prong first depending on the circumstances in the particular case).

9

Here, the Court has already determined that disputed facts, viewed in the light most

10

favorable to Plaintiff, create triable issues as to whether Contreras and Basso’s conduct

11

violated Plaintiff’s Eighth Amendment rights. Thus, the qualified immunity analysis turns

12

on whether Defendants’ conduct, viewed in the light most favorable to Plaintiff, violated

13

clearly established law. Saucier v. Katz, 533 U.S. 194, 201 (2001). This inquiry turns on

14

the “objective legal reasonableness of the action, assessed in light of the legal rules that

15

were clearly established at the time it was taken.” Pearson, 129 S. Ct. at 822 (quotation

16

omitted). If a government official “could . . . have reasonably but mistakenly believed that

17

his conduct did not violate a clearly established constitutional right,” he is entitled to

18

qualified immunity. Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).

19

Defendants argue that Contreras and Basso are entitled to qualified immunity

20

because it was not clearly established at the time that moving an inmate from one location

21

to another to resolve a dispute, placing an inmate in restraints, or allowing an officer to

22

escort an inmate violates the inmate’s constitutional rights. (Docs. 224-1 at 19-20, 229

23

at 11). These arguments have no weight because they are based entirely on Defendants’

24

sanitized version of disputed facts. Accepting Plaintiff’s version of the facts as true,

25

Contreras and Basso would have known that removing Plaintiff from his cell either to

26

facilitate his assault by another prison official, or at the very least, in deliberate disregard

27

to a serious risk that such an assault would occur, violated Plaintiff’s constitutional rights.

28

Accordingly, Contreras and Basso are not entitled to qualified immunity on Plaintiff’s

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1

Eighth Amendment threat to safety claims.

2

V.

Plaintiff’s Motion to Strike.

3

In his Motion to Strike, Plaintiff argues that Burke’s Joinder in the Motion for

4

Summary Judgment should be stricken as untimely. (Doc. 200 at 1.) This is because, he

5

argues, the Motion was filed on August 24, 2018, the last day of the Court’s extended

6

deadline for filing dispositive motions, and Burke neither joined any of the motions seeking

7

extensions to the prior filing deadlines; nor did he adhere to the extended filing date. (Id.

8

at 2.) Instead, Burke only filed his Joinder on August 27, 2018, three days after the

9

extended deadline for dispositive motions had already passed. (Id.)

10

The Court will deny the Motion to Strike as moot. First, it appears from Burke’s

11

arguments in his Joinder that he only intended to join in the exhaustion defense. (See

12

Doc. 193 at 2-3.) Because it is clear from the evidence that Plaintiff properly exhausted

13

his administrative remedies as to his claims against Burke, these claims must be resolved

14

on the merits, regardless of whether Burke is permitted to join the Motion for Summary

15

Judgement. Second, even if Burke intended to join the Motion on the merits, the other

16

Defendants provide no evidence about Burke’s use of force, including what prompted the

17

use of force and what Plaintiff was doing at the time from which to make an initial showing

18

that the force Burke used was reasonable under the circumstances. Accordingly, permitting

19

Burke to join the Motion for Summary Judgment has no bearing on the outcome of

20

Plaintiff’s claims against him, thereby rendering Plaintiff’s Motion to Strike moot.

21

IT IS ORDERED:

22

(1)

The reference to the Magistrate Judge is withdrawn as to the Motion for

23

Summary Judgment (Doc. 192) and Plaintiff’s Motion to Strike Defendant Burke’s Joinder

24

(Doc. 200).

25
26
27

(2)

The Motion for Summary Judgment (Doc. 192) is granted as to Defendant

Schiavo and denied as to Defendants Basso and Contreras.
(3)

Plaintiff’s Motion to Strike (Doc. 200) is denied as moot.

28

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1
2
3
4
5

(4)

The remaining claims in this action are Plaintiff’s Eighth Amendment claims

against Defendants Burke, Basso, and Contreras.
(5)

This action is referred to Magistrate Judge Deborah M. Fine to conduct a

settlement conference.
(6)

Counsel shall arrange for the relevant parties to jointly call Magistrate Judge

6

Fine’s chambers within 14 days of the date of this Order to schedule a date for the

7

settlement conference.

8

Dated this 29th day of March, 2019.

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