Cranford v. Badagon

Filing 75

FINDINGS and RECOMMENDATIONS Regarding Defendant Perryman's and Defendant Harder's 59 Motion for Summary Judgment; Twenty-One Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 11/25/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/22/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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ANGELA BADAGON, et al.,
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Defendants.
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_____________________________________ )
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CONSOLIDATED ACTION
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ARCHIE CRANFORD,

Case No.: 1:11-cv-00736-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT PERRYMAN’S AND
DEFENDANT HARDER’S MOTION FOR
SUMMARY JUDGMENT
(ECF No. 59)
TWENTY-ONE DAY DEADLINE

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I.

Introduction

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Plaintiff Archie Cranford (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 17, 2013, the court

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consolidated Cranford v. Badagon, 1:11-cv-00736 LJO BAM, with Cranford v. Perryman, et al., 1:13-

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cv-00906 LJO BAM. This action now proceeds against Defendant Balcagon for excessive force in

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violation of the Fourteenth Amendment and against Defendants Perryman and Harder for failure to

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protect in violation of the Fourteenth Amendment.1

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Defendant Balcagon was sued erroneously as “Angela Badagon.” Defendant Harder was sued erroneously as “Charlotte
Havder.”

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On April 23, 2014, Defendants Perryman and Harder filed a motion for summary judgment.2

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(ECF No. 59.) On May 8 and May 12, 2014, Plaintiff opposed the motion. (ECF Nos. 64, 66.)

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Defendants Perryman and Harder replied on May 19, 2014. (ECF No. 68.) The motion is deemed

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submitted. Local Rule 230(l).
Plaintiff’s Request to Strike Defendants’ Motion for Summary Judgment

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II.

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In his initial opposition filed on May 8, 2014, Plaintiff contends that Defendants’ motion for

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summary judgment should be stricken because discovery has not closed in this action. (ECF No. 64.)

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Pursuant to the Amended Discovery and Scheduling Order issued on December 18, 2013, discovery

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on Plaintiff’s claims against Defendants Perryman and Harder closed on March 22, 2014. (ECF No.

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41.) Defendants Perryman and Harder filed the present motion for summary judgment on April 23,

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2014, which was after the close of discovery.
Plaintiff also appears to contend that Defendants’ counsel improperly deposed him in 2014

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after the actions were consolidated, but before discovery opened. Plaintiff has not provided any

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support for his contention. Further, as noted above, discovery on Plaintiff’s claims against Defendant

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Perryman and Harder opened in this consolidated action on December 18, 2013, and closed on March

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22, 2014. Therefore, defense counsel was not precluded from deposing Plaintiff during that time

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frame. Based on the record before the Court, Plaintiff was deposed on March 20, 2014, before the

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close of discovery. (ECF No. 59-1, Ex. 2.)
For these reasons, Plaintiff’s request to strike Defendants’ motion for summary judgment

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should be denied.

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III.

Defendants’ Motion for Summary Judgment
A. Legal Standard for Summary Judgment

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Pursuant to Federal Rule of Civil Procedure 56(a) summary judgment is appropriate when the

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

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judgment as a matter of law. Summary judgment must be entered, “after adequate time for discovery

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Concurrent with the motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary
judgment. (ECF No. 59, pp. 2-4); see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957
(9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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and upon motion, against a party who fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the

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filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The

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“party seeking summary judgment always bears the initial responsibility of informing the district court

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of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, which it believes

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demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (internal

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quotations and citations omitted).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party

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to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co.

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v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this

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factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to

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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in

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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586

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n.11.
The parties bear the burden of supporting their motions and oppositions with the papers they

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wish the Court to consider and/or by specifically referencing any other portions of the record for

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consideration. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

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The Court will not undertake to scour the record for triable issues of fact. Simmons v. Navajo County,

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Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010).
In arriving at these findings and recommendations, the Court carefully reviewed and

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considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts

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and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference

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to an argument, document, paper, or objection is not to be construed to the effect that this Court did

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not consider the argument, document, paper, or objection. This Court thoroughly reviewed and

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considered the evidence it deemed admissible, material, and appropriate.

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B. Summary of Relevant Allegations

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Plaintiff alleges that on May 20, 2013, Defendants Perryman and Harder transferred Plaintiff

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from Unit Two at Coalinga State Hospital to Unit One. Jonny Lopez, a Unit Two Nurse, warned

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Defendants that placing Plaintiff in Unit One would present a danger to Plaintiff’s life and health

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because Angela Balcagon, a nurse who worked in Unit One, had allegedly harmed Plaintiff on a prior

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occasion. Twenty minutes after Defendants Perryman and Harder transferred Plaintiff to Unit One,

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Nurse Balcagon struck Plaintiff in the face with a broom handle.
C.

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Statement of Undisputed Material Facts (“UMF”)

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1.

Plaintiff is a civil detainee at Coalinga State Hospital. (Defs’ Ex. 1, Pl’s Dep. 9:7-9.)

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2.

Plaintiff alleges that on May 20, 2013, Defendants Perryman and Harder force moved

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him into Unit One despite being warned by Johnny Lopez that Ms. Angela Balcagon was threat to him

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because of an ongoing lawsuit, Case No. 1:11-cv-00736-JLT. (Doc. 6 in Case No. 1:13-cv-00906-

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LJO-BAM, Pl’s First Amended Complaint.)

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3.

On August 5, 2013, this court ruled that “the Court presumes that Nurse Lopez

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specifically apprised Defendants about Nurse Badagon [sic]. As such, Plaintiff states an Eighth

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Amendment claim against Defendants for their failure to protect. Therefore, it logically follows that

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Plaintiff states a cognizable claim under the Fourteenth Amendment.” (Doc. 8 in Case No. 1:13-cv-

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00906-LJO-BAM.)

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4.

Plaintiff admits that he did not find Ms. Balcagon to be a threat to his safety. (Defs’

Ex. 1, Pl’s Dep. 44:5-45:13.)
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Plaintiff testified that, after the first incident, he and Ms. Balcagon joked and kidded

around. (Id.)
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While Plaintiff claims that Nurse Johnny Lopez was present when Defendants

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Perryman and Harder told him he was being transferred, he states that Mr. Lopez said nothing. (Defs’

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Ex. 2, Pl’s Dep. 24:23-25:17.)

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7.

Defendant Harder completed the Psychiatric Technician Program at West Hills

Community College in 2005 and has been licensed as such since November 2006. (Harder Dec. ¶ 2.)

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From 2006 through 2007, Defendant Harder worked as a Psychiatric Technician (Psych

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Tech) – Porterville Developmental Center. Her duties and responsibilities included basic nursing and

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psychiatric care, documentation, patient assessments, therapeutic activities, treatment plan

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implementation, group process, observation and encouragement. (Id. at ¶ 3.)

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From 2008 through 2010, Defendant Harder studied at Hanford Adult School to be a

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Licensed Vocational Nurse. She began working at Coalinga State Hospital (“CSH”) as a Psych Tech

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in July 2012. (Id. at ¶ 4.)

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10.

Defendant Harder was assigned April 1, 2013, to Unit 2 at CSH as a Case Manager.

Defendant Harder scheduled treatment teams and acted as a go between for patient-staff-clinicians.

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(Id. at ¶ 5.)

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11.

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Defendant Harder met Plaintiff in April 2013, in Unit 2, where he was housed as a

patient. (Id. at ¶ 6.)
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Plaintiff was transferred to Unit 1 in May 2013 because of the need to vacate a bed in

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Unit 2. Defendant Harder was informed by Defendant Perryman that a patient on another unit at

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DSH-C had been sexually assaulted so this other patient needed a bed on Unit 2. A list of Unit 2

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patients, that included Plaintiff, was compiled and sent to Unit 1, to determine who would be

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transferred to Unit 1. The Unit 1 team chose Plaintiff. Defendant Harder had no role in the final

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decision-making process. (Id. at ¶ 7.)

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13.

Defendant Harder’s sole role in Plaintiff’s move to Unit 1 was to accompany Defendant

Perryman to inform Plaintiff, on May 20, 2013, that he was being transferred. (Id. at ¶ 8.)

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14.

Defendant Harder was not aware of the actual transfer until May 20, 2013. (Id. at ¶ 9.)

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15.

At no time prior to Plaintiff being transferred to Unit 1 did Defendant Harder have any

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knowledge regarding Plaintiff having any type of concerns of being transferred to Unit 1. (Id. at ¶ 11.)
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If Defendant Harder would have known of a risk to Plaintiff because of a threat posed

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to him by anyone in Unit 1, she would have done what was within her authority to prevent the transfer.

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Patient care and safety are her primary concern. (Id. at ¶ 11.)

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According to Plaintiff, the only thing he said to Defendant Perryman was that there was

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a person on unit one that he was not friends with. He expressed nothing about a threat to his safety.

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(Defs’ Ex. 2, Pl’s Dep. 22:10-14.)

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18.

Defendant Perryman attended West Hills Community College from 2006-2007 and

completed her Psychiatric Technician Program in December 2007. (Perryman Dec. ¶ 2.)
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Defendant Perryman was hired at CSH in February 2008 as a pre-licensed Psychiatric

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Technician (PLPT). She passed her boards and was licensed in March 2008. Her duties as a Psych

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Tech included assisting in the daily care for the mentally ill/SVP population at CSH, observing

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patients while they had their meals, facilitating supplemental groups, dayroom coverage, shaves,

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census rounds, locker searches, therapeutic interactions, courtyard coverage and other assigned tasks.

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As a licensed Psych Tech I, she performed the same duties and was able to pass medications and cover

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as shift lead/alternate shift lead. (Id. at ¶ 3.)

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In January 2011, Defendant Perryman was promoted to Senior Psych Tech and shift

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lead. As such, she supervised five other Psych Techs, an Assistant Shift Lead and two RN’s. As a

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Shift Lead, her responsibilities included overseeing the daily care for the mentally ill/SVP population

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at Coalinga State Hospital. As an SPT, she would delegate specific tasks to other Psych Techs, Psych

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Tech Assistants, Registered Nurses and PLPT to ensure that the daily functions of the unit were

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completed. These included observing patients while having their meals, showers, dayroom coverage,

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medication administration, courtyard coverage, treatments, census rounds, locker searches, therapeutic

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interactions, supplemental groups. She also trained new employees to ensure that they were aware of

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hospital policies and procedures and were able to complete tasks on their own. (Id. at ¶ 4.)

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In August 2012, Defendant Perryman was promoted to Unit Supervisor of Unit 2,

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where she supervised 25 staff and worked on evaluation teams that included clinicians and nurses. She

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did not, however, make determinations on patient care, that being done by the clinicians. (Id. at ¶ 5.)

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Defendant Perryman first met Plaintiff in August of 2012. (Id. at ¶ 6.)

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Regarding Plaintiff’s May 21, 2013 transfer, this was done to make room in Unit 2 for a

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sexual assault victim. The Unit 2 treatment team compiled a list of patients suitable for transfer.

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Plaintiff was part of a list of patients that were suitable for transfer. The list was compiled by a team
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that consisted of a PsyD, LCSW, rehabilitative therapist and a treatment nurse. The PsyD is the team

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lead. (Id. at ¶ 7.)

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This list was sent to the Unit 1 team. They chose Plaintiff. (Id. at ¶ 8.)

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Defendant Perryman was informed of the transfer on the morning of May 20, 2013.

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(Id. at ¶ 9.)

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On May 20, 2013, Defendant Perryman went to inform Plaintiff that he was to be

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transferred to Unit 1. At that time, he expressed no concerns regarding Angela Balcagon. (Id. at ¶

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At no time prior to May 20, 2013, did Defendant Perryman have any knowledge

regarding any difficulties or issues Plaintiff had with Angela Balcagon. (Id. at ¶ 11.)
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If Defendant Perryman had known of a risk to Plaintiff, she would have done

everything she could within her authority to prevent the transfer. (Id. at ¶ 12.)
D.

Discussion

As a civil detainee, Plaintiff’s right to personal safety is protected by the substantive

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component of the Due Process Clause of the Fourteenth Amendment. Youngberg v. Romeo, 457 U.S.

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307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Under this provision of the Constitution, Plaintiff is

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“entitled to more considerate treatment and conditions of confinement than criminals whose conditions

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of confinement are designed to punish.” Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (quoting

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Youngberg, 457 U.S. at 321–22). Thus, to avoid liability, Defendants’ decisions must be supported by

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“professional judgment.” Youngberg, 457 U.S. at 323. A defendant fails to use professional judgment

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when his or her decision is “such a substantial departure from accepted professional judgment,

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practice, or standards as to demonstrate that [he or she] did not base the decision on such a judgment.”

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Youngberg, 457 U.S. at 323.

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Here, Defendants Perryman and Harder contend that there are no genuine disputes of material

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fact as to Plaintiff’s claims against them. Defendants first contend that Plaintiff has admitted that he

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did not feel threatened by Angela Balcagon and, therefore, she could not be considered a serious

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threat. (ECF No. 59, p. 8.) Defendants next contend that Plaintiff cannot demonstrate that Defendants

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Perryman and Harder had any knowledge of a risk to Plaintiff’s safety prior to his transfer. Although
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Plaintiff claims that Mr. Lopez was present at the time of the transfer, Plaintiff admits that Mr. Lopez

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said nothing to Defendants regarding any supposed risk. (ECF No. 59, p. 9.)

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Plaintiff counters that Defendants Perryman and Harder forced Plaintiff into Unit 1. (ECF No.

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66, pp. 3, 5.) Plaintiff also asserts that both Defendants were fully aware of previous extremely

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violent and hostile interactions toward Plaintiff. (ECF No. 66, p. 2.)

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The Court finds no genuine dispute of material fact as to Plaintiff’s claims against Defendants

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Perryman and Harder. The undisputed evidence reflects that Defendants Perryman and Harder did not

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select Plaintiff for the move to Unit 1 and were not responsible for his transfer. UMF 12, 23, 24.

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Further, Plaintiff admitted that Angela Balcagon was not a threat to him. UMF 4, 5. Plaintiff also

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admitted that Mr. Lopez did not tell Defendants Perryman and Harder anything when they informed

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Plaintiff that he was going to be moved to Unit 1. UMF 6. The undisputed evidence also reflects that

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Plaintiff did not express any concerns regarding safety to Defendant Perryman when he was notified

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of the move. UMF 17. Based on the record before the Court, there is no evidence that Defendants

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Perryman and Harder were aware of any threat to Plaintiff’s safety from Angela Balcagon prior to his

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move to Unit 1. Accordingly, summary judgment should be granted in favor of Defendants Perryman

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and Harder.

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IV.

Conclusion and Recommendation

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For the reasons discussed above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion to strike Defendants’ motion for summary judgment be denied;

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2. Defendants’ motion for summary judgment, filed on April 23, 2014, be granted; and

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3. Judgment be entered in favor of Defendants Perryman and Harder.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these findings and recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov.

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18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 25, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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