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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF ) AMERICA, ) ) 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 9 to reassign inmates or investigate threats to the 10 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 15 that all cellmates who physically fought be separated 16 and reassigned to different cells. 17 adduced at trial as to separation of cellmates who 18 physically fought revealed no policy requiring the 19 prison officials to reassign such inmates to separate 20 cells. 21 testified that after talking to and counseling the 22 inmates involved in a physical fight, the officers 23 frequently determined that it was not necessary to 24 reassign them, as the altercation was an isolated 25 incident and unlikely to be repeated. 26 from two officers that they were unaware of any 27 instance when cellmates who fought had not been The evidence At least two senior corrections officials 28 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 9 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 19 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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