Clara Fernandez et al v. United States of America et al

Filing 112

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Virginia A. Phillips. (See document for specifics) (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff, )
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v.
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UNITED STATES OF
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AMERICA,
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Defendant . )
________________________ )

11 MANUEL JOE PADILLA,

Case No. CV 09-5651VAP(Ex)

12

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

13
14
15
16
17

This case was tried to the Court without a jury on

18 August 28, 29, and 30, 2013, and the Court took the
19 matter under submission at the conclusion of trial.

The

20 Court, having considered all the evidence presented by
21 the parties, the written submissions from both sides, and
22 the argument of counsel, issues the following Findings of
23 Fact and Conclusions of Law.
24
25
26
27
28

1

FINDINGS OF FACT

2 1.

Tony Richard Padilla ("Padilla") was the son of

3

Plaintiffs Manuel Joe Padilla and Clara Fernandez. 1

4

Padilla had been incarcerated at the United States

5

Penitentiary in Victorville, California ("USP

6

Victorville") since April 11, 2006, and as of May 27,

7

2006, he was housed in the penitentiary's Special

8

Housing Unit ("SHU").

9

SHU to be placed in protective custody after he had

He had been transferred to the

10

been attacked by other inmates affiliated with a

11

different prison gang.

12 2.

Mario Peña Llanas ("Peña Llanas") had been

13

incarcerated at USP Victorville since January 27,

14

2006, after his conviction for violation of 8 U.S.C.

15

§ 1326, illegal reentry into the United States after

16

deportation.

17

27, 2006, because he had been fighting with other

18

inmates while housed in general population.

19 3.

Upon his transfer to the SHU on May 27, 2006, Peña

20

Llanas was assigned to share Cell 206 with Padilla.

21

On July 9, 2006, Padilla and Peña Llanas were moved

22

to Cell 215.

23 4.

USP Victorville is one facility in the Victorville

24

Federal Correctional Complex, and is located within

25

the Central District of California.

Ex. 24J.

He was transferred to the SHU on May

Ex. 23F.

26
27

1

Clara Fernandez died during the pendency of the case
28 and has been dismissed.
2

1

Conditions and Procedures at USP Victorville's

2

Special Housing Unit

3 5.

Inmates housed in the SHU at USP Victorville are

4

confined to their cells for 23 hours each day, taking

5

their meals and showers inside the cell.

6

released for one hour per day to exercise in a

7

confined exercise area.

8

shared by Padilla and Peña Llanas, Cells 206 and 215,

9

were eight feet by twelve feet.

They are

The dimensions of both cells

10 6.

SHU staff conducts checks on the inmates every 30

11

minutes during daytime and evening hours.

12

these checks, the correctional officers look into

13

every cell through the window in the cell door.

14

Inmate safety is the primary purpose of these checks.

15 7.

Five times per day, SHU staff does an inmate count.

16

These are conducted at midnight, 3:00 a.m., 5:00

17

a.m., 4:00 p.m., and 10:00 p.m. on weekdays; the

18

primary purpose of the inmate count is ensuring that

19

all inmates are present and accounted for.

20 8.

Approximately three times per week, the lieutenant in

21

charge of the SHU conducts rounds, during which he or

22

she addresses such issues as medical and dental care

23

needs, counseling, and law library access with the

24

inmates.

25

these rounds, and spends between 15 seconds and 15

During

The lieutenant looks into each cell during

26
27
28
3

1

minutes talking to each inmate.

The warden conducts

2

rounds of the SHU once per week, accompanied by other

3

Bureau of Prisons ("BOP") staff.

4
5

Policies in Force at the USP Victorville SHU Regarding

6

Violence Between Inmates

7 9.

The evidence presented at trial revealed (1) a policy

8

existed requiring BOP staff to investigate reports or

9

witnessed incidents of fighting between cellmates;

10

and (2) no policy, written or otherwise, existed

11

mandating reassignment of cellmates following a

12

physical altercation.

13

a.

All of the BOP staff members who testified were

14

careful to state (in nearly identical language)

15

that there were no mandatory written BOP

16

policies regarding the reassignment of cellmates

17

who engaged in physical fighting.

18

b.

Jermaine Diaz worked as a correctional officer

19

in the USP Victorville SHU from May 2006 through

20

August 2006.

21

to him of inmate fights, and would notify the

22

Officer in Charge and the lieutenant in his

23

chain of command of any such reports or

24

incidents.

25

where two cellmates were found fighting and were

26

not separated, i.e., not reassigned to share a

27

cell with a different inmate.

He investigated any reports made

He could not recall any situation

28
4

1

c.

Tony Quale, employed by BOP at the Victorville

2

Federal Correctional Complex since 2000, first

3

assigned to the SHU in 2005, and now holding the

4

title of "Safety and Compliance Specialist" at

5

USP Victorville, testified no mandatory policy

6

exists mandating separation of inmates following

7

a report of violence between them.

8

report any inmate fights he observed to the SHU

9

lieutenant, and would investigate any reports of

He would

10

violence.

11

working in the SHU in August 2006, testified he

12

too investigated when he observed or got reports

13

of inmate fights, and would pass along the

14

information to his superior officer.

15

Correctional Officer Joseph Martinez testified

16

to the same effect:

17

report to his superior officer any reports or

18

observations of inmate fights.

19

Barajas testified that no BOP policy exists

20

regarding procedures that staff must follow when

21

an inmate reports a fight.

22

d.

Pedro Barajas, a correctional officer

he would investigate and

Both Quale and

Jesus Sanchez, another corrections officer

23

working at the SHU in USP Victorville in August

24

2006, testified that when he saw inmates

25

fighting, he would separate the inmates in order

26

to investigate.

He could not recall any

27
28
5

1

instances where inmates who fought in the SHU

2

were not reassigned to different cells.

3

e.

Eduardo Madrid, another correctional officer

4

working at the USP Victorville SHU in August

5

2006, testified that fighting between inmates

6

was "not tolerated" by the staff, i.e., both

7

inmates would be disciplined if found fighting.

8

f.

9

Scott Williams served as the lieutenant in
charge of the SHU at USP Victorville in August

10

2006.

11

capacity at that time; if an inmate requested a

12

move, he would have to swap cells with another

13

inmate.

14

"was not tolerated."

15

g.

He testified that the SHU was filled to

He too testified that inmate fighting

Like the other BOP employees who testified,

16

Williams emphasized the lack of a written

17

institutional policy mandating separation of

18

cellmates who had fought.

19

h.

According to Williams's trial testimony, if an

20

inmate submitted a written complaint, the

21

complaint would be sent to Williams, who would

22

read it, and if it referred to a fight or

23

assault, he first would investigate by talking

24

to both inmates.

25

together, Williams would reassign them to

26

different cells only if he thought the fighting

27

would continue.

If the inmates were housed

Williams also testified that a

28
6

1

written complaint about inmate fighting would

2

not be retained in an inmate's file or BOP files

3

unless, after investigation, the complaint was

4

found to be "legitimate."

5

i.

Captain Robert Hodak, who was a Special

6

Investigation Services ("SIS") agent at USP

7

Victorville in August, 2006, testified that

8

although it was "always a problem" to reassign

9

inmates, it was done whenever necessary.

10

Although at trial, Hodak testified that the only

11

factors BOP staff consider in making cell

12

assignments for SHU inmates were "race,

13

religion, gang affiliation, basis for transfer

14

to the SHU, and geography," during his

15

deposition, Hodak stated he would reassign two

16

cellmates who requested it "to avoid problems."

17

j.

Hodak also testified that all complaints were

18

passed on to him because the staff had the

19

obligation to do so, and it was his practice to

20

investigate any complaint of fighting and err on

21

the side of caution by separating the cellmates.

22

Finally, Hodak testified during his deposition

23

that if inmates celled together posed a threat

24

to one another, the "general understanding" or

25

unwritten policy was to separate them.

26
27

k.

The BOP officials testified that serious
incidents of violence between inmates must be

28
7

1

reported to the lieutenant in charge of the SHU.

2

Williams and Hodak testified that they would

3

receive reports of any violent conflicts between

4

inmates; Hodak testified that he knew would be

5

notified of such because corrections officers

6

were required to make such reports.

7

l.

Upon receiving such a report of violence or

8

threatened future violence, the BOP staff would

9

conduct an investigation and attempt informally

10

to determine if the cellmates were seeking

11

separate quarters or if there was a danger of

12

future violence.

13 10. In sum, the evidence was insufficient to demonstrate
14

the existence of a mandatory, nondiscretionary policy

15

of separating cellmates housed in the SHU.

16

testimony taken as a whole revealed a policy and

17

practice of investigating reported or observed inmate

18

fighting or violence, but the outcome of such

19

investigations, i.e., whether the cellmates would be

20

reassigned, depended heavily on a number of factors.

21

Even the evidence most favorable to Plaintiff on this

22

issue, the testimony by correctional officers Diaz

23

and Sanchez that they could not recall any instances

24

when cellmates who fought were not reassigned, and by

25

Hodak that his usual practice or protocol would be to

26

reassign cellmates after a fight in order to avoid

27

future problems, does not amount to evidence of a

28
8

The

1

nondiscretionary policy mandating such reassignments

2

in all circumstances where fighting occurred.

3
4

Altercations Between Padilla and Peña Llanas

5 11. Peña Llanas's BOP records showed he was disciplined
6

numerous times for fighting before 2006.

7

10-B, 10-C, 10-D, 10-F, 10-G.

8

during his trial testimony that by May 27, 2006, when

9

he was transferred to the USP Victorville SHU, he had

10

See Exs.

Peña Llanas admitted

been in fights with other inmates about 20 times.

11 12. Nevertheless, SHU staff considered Peña Llanas one of
12

the "less dangerous" inmates on the unit, and in

13

approximately July 2006, Williams assigned him an

14

orderly position on his tier.

15

would not have given Peña Llanas this assignment if

16

he had known that Peña Llanas had ever assaulted his

17

cellmate in the SHU.

18

privilege for SHU inmates, because rather than being

19

confined to one's cell for 23 hours per day, an

20

orderly was allowed outside while performing his

21

duties and often had access to extra food.

Williams testified he

Serving as an orderly was a

22 13. Peña Llanas testified he began fighting with Padilla
23

within 15 minutes of meeting him in the cell they

24

were assigned to share on May 27, 2006.

25

began when Peña Llanas observed Padilla exposing his

26

genitals to an inmate housed across the hall.

27

Although Padilla stopped this behavior when Peña

28
9

The fight

1

Llanas protested, he soon resumed.

Peña Llanas began

2

to fight with Padilla, and hit or punched him

3

repeatedly.

4

officer he heard in the corridor, and told the

5

officer he and Padilla were fighting because Padilla

6

repeatedly exposed his genitals.

7

told this correctional officer that things between

8

the two cellmates "were getting out of hand," and

9

showed his injured hand.

Peña Llanas called out to a correctional

Peña Llanas also

The correctional officer

10

responded by telling Peña Llanas to "do what he had

11

to do" and that there should be "no blood."

12

Llanas told the correctional officer he was worried

13

about his safety because Padilla was much larger and

14

heavier, and that he wanted to be moved to a

15

different cell.

16

there were no cells available.

Peña

The correctional officer told him

17 14. Later the same day, after a shift change, Peña Llanas
18

told another officer he was worried about his safety,

19

showed the officer his injured hand, and asked to be

20

transferred.

21

there were no available cells to which he could be

22

transferred.

This officer also told Peña Llanas

23 15. Several BOP employees, including Quale, Martinez,
24

Diaz, Williams, Sanchez, and Hodak, testified that

25

Peña Llanas and Padilla appeared to get along well as

26

cellmates; at least one of these witnesses described

27

the two as a "happy little couple."

28
10

Hodak, for

1

example, testified he was not aware of any problems

2

or discord between the two cellmates before August 8,

3

2006.

4

witnessed or heard of any discord between Peña Llanas

5

and Padilla.

Other officers testified that they never

6 16. Peña Llanas testified that after his initial requests
7

for transfer were denied, he told Padilla he did not

8

want to continue fighting and began to try to get to

9

know and help his cellmate.

Padilla showed Peña

10

Llanas pictures of his family, and Peña Llanas helped

11

Padilla by writing letters for him.

12

the testimony from the BOP staff that there appeared

13

to be no friction between these cellmates.

This confirms

14 17. Nevertheless, Padilla's chronic, open masturbation in
15

the shared cell was a constant cause for arguments

16

and fights between the two cellmates, and Peña Llanas

17

testified that he continued to complain about it to

18

correctional officers.

19

by sending "cop outs," or written complaints,

20

requesting to speak to the lieutenant in charge of

21

the SHU about a transfer.

22

of these written complaints does not undercut Peña

23

Llanas's credibility on this issue; as noted above,

24

the BOP employee witnesses testified that such

25

records were not retained unless an investigation had

26

been done and any complaint had been "sustained."

He complained both orally and

27
28
11

The absence of any record

1 18. Peña Llanas testified that he and Padilla physically
2

fought about ten times before August 7, 2006, and

3

some of these fights were witnessed by correctional

4

officers, including Officers Madrid and Diaz.

5

Llanas brought these fights to the attention of other

6

correctional officers.

Peña

7 19. Peña Llanas also testified that although he
8

repeatedly complained to corrections officers about

9

Padilla's chronic masturbation, his fear of Padilla,

10

and his fear of future violence between him and his

11

cellmate, his complaints and warnings were never

12

investigated.

13 20. The Court found credible Peña Llanas's testimony
14

regarding (1) the pattern of violent conflict between

15

Padilla and Peña Llanas, (2) his verbal and written

16

complaints to BOP staff, and (3) the failure of the

17

BOP staff to investigate or act in any manner on the

18

complaints and warnings.

19

a.

Peña Llanas's testimony that he assaulted Padilla

20

approximately ten times before August 7, 2006,

21

constituted admissions against his penal

22

interest.

23

the plea agreement2 between Peña Llanas and the

24

government, barred his future prosecution for

25

this conduct, it still constitutes admission of

Even if the statute of limitations, or

26
2

Peña Llanas pled guilty to voluntary manslaughter
and assault with a deadly weapon on February 13, 2009,
28 pursuant to a plea agreement.
27

12

1

criminal conduct.

2

to gain nothing by testifying for Plaintiff;

3

rather, as he faces a long period of

4

incarceration in BOP custody, testifying against

5

the interests of the Government, and the BOP

6

officials in whose custody he is confined, is

7

also against his interest.

8

b.

9

Furthermore, Peña Llanas stood

Key points of Peña Llanas's testimony were
corroborated by other witnesses.

For example,

10

corrections officer Barajas testified that when

11

he arrived at Cell 215 on August 8, 2006, he

12

observed that Padilla's face was swollen and

13

puffy.

14

two kicks to Padilla's temple.

15

puffiness on his face that officer Barajas

16

observed was consistent, however, with a beating

17

the night before, as Peña Llanas testified he had

18

inflicted on his cellmate because of the latter's

19

open masturbation.

20
21

c.

The fatal blows that night, however, were
The swelling and

Inmate Luiz Edsall testified he had witnessed
injuries on Padilla on more than one occasion.

22 21. Williams and Hodak testified they were unaware of any
23

violence between Padilla and Peña Llanas.

24

testified they never received or heard any reports of

25

past confrontations, written or oral, nor any

26

warnings of future violence.

27
28
13

They each

1 22. Their subordinates testified they knew it was their
2

responsibility to forward any complaints by inmates

3

to the lieutenant in charge, or to investigate these

4

complaints themselves.

5

having received any complaint or warning from Peña

6

Llanas, and denied any awareness of the assaults

7

inflicted on Padilla by Peña Llanas.

Nevertheless, they all denied

8 23. Hence, having accepted the testimony of Peña Llanas
9

that he made complaints and warned of future violent

10

conflicts with his cellmate, the Court finds that

11

either (1) those officials with supervisory

12

responsibility in the SHU received the complaints and

13

failed to act on them, or (2) those corrections

14

officers to whom the complaints were made orally, or

15

to whom the written complaints were handed, failed to

16

forward them to their superiors.

17
18

The Fatal Assault on Padilla

19 24. Both Padilla and Peña Llanas were in their cell on
20

August 7, 2006, when Padilla began masturbating; Peña

21

Llanas warned him to stop and when Padilla did not,

22

Peña Llanas punched him in the face, bruising

23

Padilla's eye.

24 25. Peña Llanas's account that he had inflicted visible
25

injuries on Padilla on August 7, 2006, was supported

26

by testimony from inmate Edsall.

27

the barber for the SHU inmates, and claimed he saw

28
14

Edsall worked as

1

Padilla with a black eye and bruises and notified

2

Williams about it, who told him there was no other

3

available cell for Peña Llanas.

4 26. The next day, August 8, 2006, Peña Llanas reported
5

for work on his orderly shift.

At the end of his

6

shift at approximately 8:00 p.m., Madrid and Sanchez

7

escorted Peña Llanas back to his cell.

8

according to Peña Llanas, Sanchez observed the

9

obvious injury to Padilla's face from the blows Peña

Then,

10

Llanas had inflicted the previous day.

Sanchez asked

11

Padilla if he had suffered an injury in the

12

recreation room, and Padilla gestured toward Peña

13

Llanas.

14

Llanas back in his cell with Padilla and uncuffed

15

him.

Nevertheless, the officers placed Peña

16 27. Shortly after this, Peña Llanas observed Padilla once
17

again masturbating, this time while looking at a

18

letter written to Peña Llanas by his sister.

19

angered Peña Llanas so much that he grabbed the

20

letter away from Padilla and kicked him twice,

21

hitting Padilla in the temple with his foot.

This

22 28. Peña Llanas did not intend to kill Padilla when he
23

kicked him, but was angry with his cellmate and

24

wanted to make Padilla stop masturbating.

25

afraid of Padilla, because of the latter's size

26

advantage, and testified he previously had told

27

correctional officers he was afraid he might "do

28
15

He was

1

something stupid" if he was not transferred to

2

another cell, as a result of Padilla's inappropriate

3

behavior.

4

inmates began fighting, "who knew what would happen?"

And, Peña Llanas explained, when two

5 29. Immediately after Peña Llanas kicked Padilla in the
6

temple, Padilla fell to the floor, and began

7

groaning, twitching, bleeding and foaming from his

8

mouth.

9

him water and tried to comfort him, urging Padilla to

10

Peña Llanas tried to assist Padilla, brought

think of his mother.

11 30. Barajas was working in the USP Victorville SHU the
12

night of August 8, 2006.

At approximately 10:15 p.m.

13

he was called to Cell 215.

14

that Padilla was suffering a seizure.

15

observed that Padilla's face was "puffy" and one eye

16

was swollen up and closed.

Peña Llanas told Barajas
Barajas

17 31. Dr. Frank Sheridan, the forensic pathologist who
18

performed the autopsy on Padilla, testified that

19

Padilla died on August 12, 2006, at the Arrowhead

20

Regional Medical Center as a result of the injuries

21

sustained in the assault.

22 32. Peña Llanas pled guilty to one charge of voluntary
23

manslaughter of Padilla, and one count of assault

24

with a deadly weapon on him, on February 13, 2009.

25
26
27
28
16

1

CONCLUSIONS OF LAW

2 1.

The Court has jurisdiction over this negligence

3

action pursuant to the Federal Tort Claims Act

4

("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.

5
6

Elements of a Negligence Claim

7 2.

The incident giving rise to this action, i.e., the

8

killing of Tony Padilla, occurred within the

9

jurisdiction of the Central District of California,

10

and the Court applies the California substantive law

11

of negligence.

12 3.

To prove negligence, a plaintiff must show "that the

13

defendant owed the plaintiff a legal duty, that the

14

defendant breached the duty, and that the breach was

15

a proximate or legal cause of injuries suffered by

16

the plaintiff."

17

6 Cal. 4th 666, 673 (1993) (citing United States

18

Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d

19

586, 594 (1970)), and 6 Witkin, Summary of Cal. Law

20

(9th ed. 1988) Torts, § 732, p. 60), disapproved on

21

other grounds by Reid v. Google, Inc., 50 Cal. 4th

22

512, 516 (2010).

23 4.

California applies the substantial factor test of the

24

Restatement Second of Torts to determine causation.

25

"Under that standard, a cause in fact is something

26

that is a substantial factor in bringing about the

28 U.S.C. §§ 1346(b), 2674.

Ann M. v. Pac. Plaza Shopping Ctr.,

27
28
17

1

injury."

Rutherford v. Owens-Illinois, Inc., 16 Cal.

2

4th 953, 968-69 (1997) (citations omitted).

3
4

The Discretionary Immunity Exception to the FTCA

5 5.

The FTCA embodies a limited waiver of sovereign

6

immunity for specified tort actions arising out of

7

the conduct of federal employees.

8 6.

If the claim under the FTCA stems from a federal

9

employee's exercise of a "discretionary function,"

28 U.S.C. § 2674.

10

however, then liability is barred under 28 U.S.C.

11

§ 2860 (a), which provides:

12

[a]ny claim based upon an act or omission of an

13

employee of the Government, exercising due care,

14

in the execution of a statute or regulation,

15

whether or not such statute or regulation be

16

valid, or based upon the exercise or performance

17

or the failure to exercise or perform a

18

discretionary function or duty on the part of a

19

federal agency or an employee of the Government,

20

whether or not the discretion involved be abused.

21 7.

The courts have developed a two-part test to

22

determine whether the discretionary function

23

exception bars a particular claim.

24

decide whether the challenged conduct is

25

discretionary, that is, whether it 'involv[es] an

26

element of judgment or choice. . . .

27

is not met "when a federal statute, regulation or

28
18

"First we must

'This element

1

policy specifically prescribes a course of action for

2

an employee to follow."' . . . If the act is not

3

discretionary, the government is not immune."

4

v. United States, 276 F.3d 557, 561 (9th Cir. 2002)

5

(citing Fang v. United States, 140 F.3d 1238, 1241

6

(9th Cir. 1998) and Berkovitz v. United States, 486

7

U.S. 531, 536 (1988)).

8 8.

If the challenged conduct is discretionary, then in

9

the second step the Court determines "'whether that

Alfrey

10

judgment is of the kind that the discretionary

11

function exception was designed to shield.'"

12 9.

The conduct challenged here is the failure by the BOP

13

staff to separate Padilla and Peña Llanas, and assign

14

them to different cells.

15

burden of showing discretionary function immunity

16

applies.

17

1128 (9th Cir. 2008) (citing Prescott v. United

18

States, 973 F.2d 696, 702 (9th Cir. 1992)).

19

the Court first examines whether the Government has

20

met its burden of showing the absence of any

21

mandatory policy, regulation, or statute regarding

22

the separation of inmates who repeatedly fought in

23

the cell when confined in the SHU.

Id.

The Government bears the

Terbush v. United States, 516 F.3d 1125,

Hence,

24 10. Plaintiff concedes there was no mandatory statute or
25

regulation governing the separation or assignment of

26

inmates in the SHU.

27

BOP "policy" or "protocol" is to separate inmates if

He contends, instead, that the

28
19

1

the prison staff receive a complaint or request to

2

move an inmate to prevent future harm.

3

of Contentions of Fact & Law (Doc. No. 87) at 8.]

[Pl.'s Mem.

4 11. No evidence of any written policy, statute or
5

regulation was produced at trial.

An unwritten

6

policy may suffice under this first step of the

7

analysis, but there must be evidence that such a

8

policy imposed a mandatory duty on prison officials

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to reassign inmates or investigate threats to the

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safety of inmates.

11

Macharia v. United States, 334 F.3d 61, 66 (D.C. Cir.

12

2003).

Alfrey, 276 F.3d at 562; see also

13 12. The testimony from the witnesses employed by the BOP
14

established the lack of an unwritten policy requiring

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that all cellmates who physically fought be separated

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and reassigned to different cells.

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adduced at trial as to separation of cellmates who

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physically fought revealed no policy requiring the

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prison officials to reassign such inmates to separate

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cells.

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testified that after talking to and counseling the

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inmates involved in a physical fight, the officers

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frequently determined that it was not necessary to

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reassign them, as the altercation was an isolated

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incident and unlikely to be repeated.

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from two officers that they were unaware of any

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instance when cellmates who fought had not been

The evidence

At least two senior corrections officials

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20

The evidence

1

separated, and from another that it was his usual

2

practice to separate cellmates if future violence was

3

feared was not sufficient; that evidence is not

4

tantamount to a showing that a policy exists

5

mandating the separation and reassignment of inmates.

6 13. Although the trial testimony revealed the existence
7

of a policy that BOP personnel investigate reports or

8

complaints of violence between cellmates, Plaintiff

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did not rely upon a theory that violation of such a

10

policy caused his damage here.3

11

Pretrial Conference Order [see Pretrial Conference

12

Order (Doc. No. 92) Ex. A at 3, 5], nor in his

13

Memorandum of Contentions of Fact and Law [see Pl.'s

14

Mem. of Contentions of Fact & Law at 9-13], did

15

Plaintiff specify any mandatory, nondiscretionary

16

policy which would exempt this case from the bar of

17

section 2860(a), other than an alleged policy

18

mandating separation and reassignment of inmates who

Neither in the

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20
21

3

In any event, even if pled and relied upon by the
22 Plaintiff, existence of a mandatory policy to investigate
a report of inmate-on-inmate violence likely would not
23 have supported a finding of liability, as Plaintiff did
not produce evidence that the failure to conduct an
24 investigation was a "substantial factor" causing his
injury. As described above, the supervisory BOP
25 personnel charged with investigating such complaints
testified they did not automatically reassign inmates who
26 fought; rather, they counseled and attempted to discern
whether or not the violence would be repeated. Williams
27 and Hodak both testified, moreover, they thought Padilla
and Peña Llanas appeared compatible, based on their
28 observations of them.
21

1

fought.

Accordingly, as the evidence presented at

2

trial did not support a finding that the latter

3

policy existed, Plaintiff's claim is barred.

4
5 Dated:October 31, 2013_____

___________________________

6

VIRGINIA A. PHILLIPS
United States District Judge

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