Warner v. Cate et al

Filing 116

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Request to Stay Proceedings to Reopen Discovery; to Deny Defendants' 99 Motion for Summary Judgment signed by Magistrate Judge Michael J. Seng on 08/16/2016. Referred to Judge O'Neill; Objections to F&R due by 9/2/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

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v.

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Case No. 1:12-cv-01146-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S REQUEST TO
STAY PROCEEDINGS TO REOPEN
DISCOVERY

M. CATE, et al.,
(ECF No. 108)
Defendants.

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FINDINGS AND RECOMMENDATION
TO DENY DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

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(ECF No. 99)
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FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF No. 1 & 7.) This action
proceeds on Plaintiff’s first amended complaint (“FAC”) against Defendants Walker,
Davis1, Prokop, Spralding, and Fellows for failure to protect in violation of the Eighth
Amendment. (ECF No. 10.)

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Formerly Defendant D. McGaha.

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I.

Procedural History

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Before the Court is Defendants’ March 7, 2016 motion for summary judgment.
(ECF No. 99.) On May 25, 2016, Plaintiff filed an opposition. (ECF No. 108.) Within
Plaintiff’s opposition was a request to stay the proceedings pursuant to Federal Rule of
Civil Procedure 56(d), and to reopen discovery to allow Plaintiff to obtain additional
evidence in opposition. (ECF No. 108 at 6.) On June 8, 2016, Defendants filed a reply
(ECF No. 111.) In their reply, they objected to Plaintiff’s request to reopen discovery on
the ground that Plaintiff failed to show what facts would be revealed through further
discovery that would refute the facts set forth in Defendants’ summary judgment motion.
(ECF No. 111.) These matters are deemed submitted. Local Rule 230(l).

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II.

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The following facts relevant to Defendants’ summary judgment motion are found
to be undisputed for purposes of this motion unless otherwise noted.2

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In 2000, Plaintiff was classified as a Sensitive Needs Yard (“SNY”) inmate and
remained classified as such through February 2011. (Warner Dep. 36:11-38:10.) SNY
inmates are housed in a separate designated yard, away from the general population.
(Mathison Dec. (ECF No. 99-6) ¶ 3).

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Factual Background

On October 18, 2005, after Plaintiff’s former cellmate attacked inmate Robert
Siordia, Siordia was listed as an enemy of Plaintiff.3 (Mathison Dec. Ex. B (ECF No. 998) at 3, “Oct. 18, 2005 General Chrono”; Fellows Dec. (ECF No. 99-10) ¶ 11; Warner
Dep. 39:5-25.) Siordia felt Plaintiff should have warned Siordia of the impending attack.

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Defendants cite to Plaintiff’s
his deposition
24 FAC, as support for a number own statements, either made during many of these or contained within his
of proffered facts. Plaintiff disputes
statements even when
he is their source. Often, Plaintiff provides no reason for his objection, but simply states he needs further

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Defendants have supplied the Court with a hardcopy of Plaintiff’s complete deposition transcript.

26 Wherever possible, the Court has referred to it and other available evidence to confirm the validity of
Defendants’ undisputed facts.

Where Plaintiff’s own statements are consistent with Defendants’

27 characterization of facts, the Court has disregarded Plaintiff’s objections.
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The papers filed in this case spell inmate Siordia’s name as “Siordia” and “Sordia.” As Defendants’

28 summary judgment motion uses “Siordia,” the Court will use that spelling.
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(Warner Dep. 39:5-25.) In April 2008, at Plaintiff’s request, Siordia was removed from
Plaintiff’s enemy list. (Warner Dep. 40:5-41:9; Fellows Dec. ¶ 11; Mathison Dec. Ex. B
at 4, “Apr. 25, 2008 General Chrono.”) At the time, Plaintiff stated he could be housed
on any facility and had no issues with Siordia. (Warner Dep. 40:5-41:9.) However, in
2010, while Plaintiff was housed at Salinas Valley State Prison (“SVSP”), he learned
members of the Northern Riders gang, of which Siordia was a leader, had threatened
Plaintiff’s life, (Warner Dep. 27:9-18),4 and his concerns about Siordia were renewed.
(Warner Dep. 42:1-13.)

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From January 6, 2011 through February 14, 2011, Plaintiff was housed at PVSP.
(Mathison Dec. Ex. B at 2, “Warner Chronological History.”) Prior to that, Plaintiff was
incarcerated at SVSP. In January 2011, all Defendants were employed at PVSP.
Defendant Walker was employed as a Correctional Captain. (Walker Dec. (ECF No. 994) ¶ 3.) Defendants Spralding, Davis, Fellows, and Prokop were employed as
Correctional Counselors I. (Spralding Dec. (ECF No. 99-9) ¶ 3; Davis Dec. (ECF No. 995) ¶ 3; Fellows Dec. ¶ 3; Prokop Dec. (ECF No. 99-11) ¶ 3).

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On January 19, 2011, Plaintiff appeared for his initial SNY review hearing before
the PVSP Facility A Unit Classification Committee (“UCC”).5 (Warner Dep. 35:7-17.)
One of the purposes of the hearing was to determine Plaintiff’s placement within PVSP.
CAL. CODE REGS. tit. 15 § 3376(d)(2).

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Plaintiff claims that, during the hearing, he stated he had safety concerns at
PVSP involving Siordia. (Warner Dep. 49:10-24.) According to Plaintiff, Siordia also was
housed at PVSP (FAC (ECF No. 10) ¶ 13) and knew Plaintiff was there. (FAC ¶ 15.)
Siordia had issued a verbal warning that Plaintiff would be attacked if he remained at

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Plaintiff states he shared these concerns with Salinas Valley officials before he was transferred to
PVSP. Their failure to respond formed the basis of a separate lawsuit that was filed in the Northern
District of California. Warner v. Cate, No. 4:12-cv-06163-YGR. (Warner Dep. 23:6-26:15.)
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The parties dispute what occurred at the January 19, 2011 classification hearing that is the subject of
this lawsuit. However, Defendants have proffered Plaintiff’s version of events solely for the purposes of
this summary judgment motion; they argue that even if Plaintiff’s version of events is taken as true,
Defendants are still entitled to judgment as a matter of law.

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PVSP. (FAC ¶ 15.)6

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Plaintiff’s enemy concerns with Siordia stemmed from issues that arose while
Plaintiff was still incarcerated at SVSP. He had there learned that there was a “threat
against [Plaintiff’s] life” issued by the Northern Riders gang out of PVSP, of which
Siordia was the leader. (Warner Dep. 27:9-21.) Plaintiff believed the “two five” gang7 at
SVSP had been contacted by the Northern Riders.8 (Warner Dep. 50:8-15.) Plaintiff
states he was transferred out of SVSP because of his fears that he would be attacked in
SVSP at the Northern Riders’ direction. (Warner Dep. 27:9-21.) In spite of Plaintiff’s
concerns, SVSP officials transferred Plaintiff to PVSP. Id.

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Siordia’s name was not included on Plaintiff’s confidential or non-confidential
enemy list at the time of the hearing. (Fellows Dec. ¶ 11; Warner Dep. 40:1-4).9

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During the hearing, Plaintiff was told that if he could not program on Facility A, he
would be placed in the segregated housing unit (“SHU”). (Warner Dep. 51:22-52:01;
Warner Dec. ¶ 9 (ECF No. 108 at. 22).)10 Walker told Plaintiff he was “out of places to
go” and had to “man up and go out there and do what [Plaintiff has] got to do.” (Warner
Dep. 59:24-60:8.)

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Plaintiff claims that, during the hearing, Walker instructed an officer to “go get”
Siordia.

(Warner Dep. 51:22-52:10.)

Warner and Siordia were placed in adjacent

holding cells, where they had a discussion in the presence of a Sergeant and another
correctional officer (neither of whom are Defendants).

The Sergeant told Siordia

Plaintiff had told prison officials that Siordia had sent a warning message to Plaintiff
telling him he would face consequences if he came onto the yard at PVSP. (Warner

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According to Defendants, Plaintiff did not raise any concerns regarding Siordia at the hearing and they
were unaware of any such concerns. (Def.’s Mot. Summ J. at n. 2 (ECF No. 99-2.))
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It is the Court’s understanding that the “two five” gang was a prison gang housed in the same SNY as
Plaintiff at SVSP.
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The record before the Court does not reflect the exact impetus behind the renewed “bad blood” between
Plaintiff and Siordia.
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Plaintiff objects to this fact, but the Court finds that it is supported by Plaintiff’s own deposition testimony.
(Warner Dep. 40:1-4; 40:15-41:1.)
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Plaintiff does not dispute that this statement was made, but characterizes it as a threat. (ECF No. 108
at 7.)

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Dec. ¶ 11.) According to Plaintiff, this amounted to the Sergeant telling Siordia Plaintiff
had “snitched” on Siordia.11 (Warner Dec. ¶ 12).

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Siordia denied having any animosity toward Plaintiff. (FAC ¶¶ 31-34; Warner
Dep. 52:10-54:17; Warner Dec. ¶ 11.)12 No Defendants were present during the
conversation between Plaintiff, Siordia, and the Sergeant. (Warner Dep.54:13-17.) It is
not clear that this conversation was relayed to Defendants.

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As a result of the hearing, Defendants, or some of them, recommended Plaintiff
be placed in Facility A. (Warner Dep. 57:25.) According to Defendants, Facility A was
the only SNY in PVSP. (Fellows Dep. ¶ 9.) According to Plaintiff, however, PVSP had
two SNYs, Facility A and Facility B, and Plaintiff could have been placed on either yard.
(Warner Dec. ¶ 13.) Plaintiff states that although Facility B was classified as a “Level III”
yard, Defendants had discretion to place him there as an “irregular placement condition”
pursuant to California Code of Regulations § 3375.2(a).13 Id.

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After his conversation with Siordia in the holding cell, Plaintiff was moved directly
to his former cell in Building 1 to retrieve his property; he never returned to the hearing
room and was not present for any discussions, deliberations, or decision-making.
(Warner Dep. 56:16-24; 58:15-18.) He was then forcibly moved from Building 1 to
Building 2 of Facility A, the same building where Siordia was housed. (Warner Dep.
54:18-57:11.)14

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Between January 19 and 20, 2011, several of Siordia’s fellow gang members
loitered outside of Plaintiff’s cell; Plaintiff refused to leave his cell for meals out of fear.
(Warner Dep. 65:14-66:21.) On January 20, 2011, Plaintiff cut his left wrist with a razor.

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Defendants dispute that this disclosure amounted to Defendants’ labeling Plaintiff a “snitch.”
Plaintiff disputes Defendants’ version of these facts, however Plaintiff states in his deposition and FAC
that he was placed in a holding cell adjacent to Siordia during the hearing, at which time Siordia denied
having any animosity toward Plaintiff.
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The regulation states: “An inmate meeting one or more . . . administrative or irregular placement
conditions, known as administrative determinants, may be housed in a facility with a security level which
is not consistent with the inmate's placement score.” CAL CODE REGS. tit. 15, § 3375.2(a). The regulation
goes on to list eleven placement conditions. Plaintiff does not state which of these conditions he meets.
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Once again, Plaintiff disputes Defendants’ version of the facts, however the Court finds these facts are
supported by Plaintiff’s deposition transcript.
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He was never attacked by Siordia or any other inmate. (Warner Dep. 67:1-18.)

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According to Defendants, all enemy claims must be independently verified to
ensure their veracity. (Fellows Dec. ¶ 12). If an inmate raises enemy concerns, he will
not be assigned a new housing location but instead will be placed in the SHU or
returned to his old housing unit until the matter is resolved. (Fellows Dec. ¶ 10; Walker
Dec. ¶ 7.)15

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There is some question in this case as to whether all of the named Defendants
participated in Plaintiff’s January 19, 2011 UCC hearing. Under CDCR regulations, only
three staff members were required to attend the UCC hearing to comprise a quorum.
CAL. CODE. REGS. tit. 15 § 3376(b).

Chairperson and Fellows participated as the Recorder. (Walker Dec. ¶ 5; Fellows Dec. ¶
5).

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The Recorder was responsible for presenting Plaintiff’s case to the UCC for

consideration and preparing the UCC Form 128G to document the hearing. (Fellows
Dec. ¶ 5). The names “Davis,” “Prokop,” and “Spralding” all appear on the January 19,
2011 Form 128G. (Warner Dep. 34:16-20; Davis Dec. ¶ 5; Prokop Dec. ¶ 5; Spralding
Dec. ¶ 5.) Davis, Prokop, and Spralding do not recall the January 19, 2011 hearing and
do not remember ever interacting with Plaintiff. (Davis Dec. ¶ 6; Prokop Dec. ¶ 6;
Spralding Dec. ¶ 6.)

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Walker presided over the hearing as the

With the exception of Walker, Plaintiff did not know Defendants’ names until he
saw the January 19, 2011 Form 128G. (Warner Dep. 34:16-35:11.)16 With the exception
of Walker, Plaintiff could not match each Defendant’s name with his or her face.
(Warner Dep. 47:19-21.) Plaintiff does not recall how many staff members attended the
January 19, 2011 hearing. (Warner Dep. 47:8-19.) He believes that, provided the

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Plaintiff disputes the two facts contained within this paragraph but does not provide any reason or
factual basis to support this dispute. Instead, Plaintiff requests additional discovery to prove an
unspecified point. (ECF No. 108 11-12.) As explained in the discussion below, the two disputed facts
included within this paragraph, if true, would actually support Plaintiff’s case. As Plaintiff has provided no
specific objections to these facts, the Court will deem them undisputed for the purposes of this motion.
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Plaintiff disputes this fact, however Plaintiff’s own deposition transcript reflects he did not know the
names of any Defendant before looking at the UCC Form 128G.

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opportunity to actually see Fellows, Davis, Prokop, and Spralding, he would be able to
state with specificity what each Defendant said and did during the hearing. (Warner
Dep. 48:11-20.)

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III.

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The Court will first address Plaintiff’s motion to stay.

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Plaintiff has moved to stay the proceedings to give him additional time to conduct
discovery and obtain evidence in opposition to Defendants’ summary judgment motion.
(ECF No. 108.)

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Plaintiff’s Motion to Stay the Proceedings to Reopen Discovery

Federal Rule of Civil Procedure 56(d) permits the Court to delay consideration of
a motion for summary judgment to enable parties to obtain discovery to oppose the
motion. Fed. R. Civ. P. 56(d). In this case, the facts before the Court on Defendants’
summary judgment motion compel the Court to recommend its denial. No additional
facts are necessary to justify the recommendation to deny Defendant’s motion.
Accordingly, the Court also will recommend denying Plaintiff’s motion for a stay.

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IV.

Defendants’ Motion for Summary Judgment
A.

Summary Judgment Standard

Any party may move for summary judgment, and “[t]he [C]ourt shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be
supported by (1) citing to particular parts of materials in the record, including but not
limited to depositions, documents, declarations, or discovery; or (2) “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1).

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The party seeking summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted).

If the movant will have the burden of proof at trial, it also must

demonstrate, with affirmative evidence, that “no reasonable trier of fact could find other
than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). In contrast, if the nonmoving party will have the burden of proof at trial, “the
movant can prevail merely by pointing out that there is an absence of evidence to
support the nonmoving party’s case.” Id. (citing Celotex, 477 U.S. at 323). Once the
moving party has met its burden, the nonmoving party must point to "specific facts
showing that there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986)).
In ruling on a motion for summary judgment, a court does not make credibility
determinations or weigh evidence. See Liberty Lobby, 477 U.S. at 255. Rather, “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. Only admissible evidence may be considered in deciding a
motion for summary judgment. Fed. R. Civ. P. 56(c)(2). “Conclusory, speculative
testimony in affidavits and moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment.” Soremekun, 509 F.3d at 984.
Here, Defendants have moved for summary judgement. As the party who will not
have the burden of proof at trial, Defendants “can prevail merely by pointing out that
there is an absence of evidence to support the [Plaintiff’s] case.” Id. (citing Celotex, 477
U.S. at 323).

Assuming Defendants have met this burden, to defeat summary

judgment, Plaintiff must point to "specific facts showing that there is a genuine issue for
trial." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). In any

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instance where there is a dispute over a material fact, the Court must resolve any
controversy in favor of the non-moving party. Lujan v. National Wildlife Federation, 497
U.S. 871, 888 (1990).
B.

Discussion
1.

Eighth Amendment Failure to Protect
a.

Legal Standard

Prison officials have a duty to protect prisoners from violence at the hands of
other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The failure of prison
officials to protect inmates may rise to the level of an Eighth Amendment violation when
“(1) the deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison officials
had a ‘sufficiently culpable state of mind,’ acting with deliberate indifference.” Hearns v.
Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting Farmer, 511 U.S. at 834).
With regard to the first prong, an inmate making a failure to protect claim satisfies
the “sufficiently serious deprivation” requirement by “show[ing] that he is incarcerated
under conditions posing a substantial risk of serious harm.” Lemire v. California Dep’t of
Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 834).
While it is true that the determination of the point at which a risk of harm becomes
sufficiently substantial to implicate the Eighth Amendment has not been fleshed out,
Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050-51 (9th Cir. 2002) (citing
Farmer, 511 U.S. at 834), “[t]he objective question of whether a prison officer’s actions
have exposed an inmate to a substantial risk of serious harm is a question of fact, and
as such must be decided by a jury if there any room for doubt.” Lemire, 726 F.3d at
1075-76 (citations omitted). Moreover, in order to satisfy the objective prong, “it is
enough for the inmate to demonstrate that he was exposed to a substantial risk of some
range of serious harms; the harm he actually suffered need not have been the most
likely result among this range of outcomes.” Id. at 1076.
To satisfy the second prong, deliberate indifference, Defendants must have been

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aware of facts from which the inference could be drawn that a substantial risk of harm
exists, and they must also have drawn and disregarded that inference. Farmer, 511
U.S. at 837.

While Defendants are correct that mere negligence on the part of

Defendants is not enough to prove liability, id. at 836, a prison official does “not escape
liability if the evidence show[s] he merely refused to verify underlying facts that he
strongly suspected to be true, or declined to confirm inferences of risk that he strongly
suspected to exist.” Id. at 843, n. 8.
b.

Substantial Risk of Harm

Defendants argue that there is no evidence that Plaintiff faced a substantial risk
of serious harm from Siodia. Evidence to the contrary includes Plaintiff’s 2008 removal
of Siordia from his enemy list and withdrawal of his objection to sharing program
facilities with Siordia. Further, according to Plaintiff, in 2011 Siordia himself stated he
harbored no ill will toward Plaintiff.

Defendants also cite Siordia’s failure to attack

Plaintiff when both he and Siordia were at PVSP as evidence Siordia had no intent to do
so, in effect arguing that this proves Plaintiff’s alleged fears of harm were unfounded.
Nevertheless, the Court finds there is sufficient evidence from which a
reasonable juror could conclude that Plaintiff faced an objectively serious risk of harm
from inmate Siordia. It is undisputed that Siordia was a verified and documented enemy
of Plaintiff’s from 2005 to 2008. While Plaintiff requested to have Siordia removed from
his enemy list in 2008, Plaintiff renewed his enemy concerns at the 2011 UCC hearing.
Furthermore, as an alleged leader of the Northern Riders gang, Siordia had the ability to
have Plaintiff attacked by a gang associate even if he did not personally threaten or
attack Plaintiff. Indeed, Plaintiff’s fears that such an attack would take place at SVSP
allegedly formed the basis of his transfer out of that institution.

Siordia’s alleged

statement at the UCC hearing that he had no dispute with Plaintiff is not inconsistent
with a desire to have prison officials look elsewhere for the perpetrator if Plaintiff were in
fact attacked. The fact Plaintiff was never attacked is not determinative; the risk of an

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attack is enough to trigger the “substantial risk” criterion. Lemire, 726 F.3d at 1076.
Plaintiff states that he was informed that Siordia knew of Plaintiff’s presence at PVSP
and had issued a verbal warning that Plaintiff would be the victim of an imminent attack.
Assuming these facts are true, Plaintiff has offered sufficient evidence to show he
faced a substantial risk of an attack.

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c.

Deliberate Indifference

There also is sufficient evidence upon which a jury could find that Defendants
were deliberately indifferent to that risk when they assigned Plaintiff and Siordia to the
same housing unit.
Defendants argue that even assuming Plaintiff’s version of events is true, there
are no facts showing Defendants actually knew Plaintiff had concerns about Siordia
when they assigned him to Facility A. The then-most recent record showed Plaintiff had
asked to have Siordia removed from his enemy list in 2008 and opined that the two
could program together without issue.
However, as noted, there is evidence from which it could be concluded Plaintiff
told Defendants of his safety concerns regarding Siordia at the January 19, 2011 UCC
hearing. If a jury were to accept this version of events, it could find Defendants were put
on notice of Plaintiff’s fears—arguably, sufficient facts to give rise to an inference that a
substantial risk of harm existed—and yet did nothing to address them. See Farmer, 511
U.S. at 843, n. 8.
The record is not perfectly clear as to how much information Plaintiff actually
shared with Defendants during the January 19, 2011 hearing. Plaintiff stated during his
deposition only that he thinks he “[went] into” the “facts of the matter that the two five
gang [] in Salinas Valley was involved in [Plaintiff’s] safety concerns and that the
Northern Riders were believed to have contracted (sic) the two fivers.” (Warner Dep.
50:8-15.)

Despite this uncertainty,the said testimony is found to be sufficient, if

believed, to support a finding, if made by the trier of fact, that Defendants were put on

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notice at the January 19, 2011 hearing of a substantial risk of harm.
The case Defendants rely on, Labatad v. Corr. Corp. of Am., 714 F.3d 1155 (9th
Cir. 2013), is distinguishable from the instant case. There, plaintiff sued prison officials
for failing to protect plaintiff from assault by plaintiff’s cellmate, a rival gang member. Id.
In affirming summary judgment in favor of the defendants, the Ninth Circuit noted the
plaintiff and his cellmate had been housed together in the general population for an
extended period without any problems having arisen between them; although plaintiff
had fought with another member of the same gang a few days prior, he had assured
prison officials the fight was not gang- related. Id. at 1161. Given those facts, the Ninth
Circuit felt prison officials were not deliberately indifferent in housing the two individuals
in the same cell.
Unlike the Plaintiff in Labatad, Plaintiff here reportedly stated an unequivocal fear
of Siordia on January 19, 2011. Furthermore, unlike the prisoners in Labatad, there is
no evidence here that Plaintiff spent any conflict-free time in the same facility as Siordia
after the 2005 fight between Siordia and Plaintiff’s former cellmate. Finally, in this case
there had been an actual dispute between Plaintiff and Siordia: Plaintiff’s former
cellmate attacked Siordia and Siordia felt Plaintiff should have warned him. All these
facts, taken together, could lead a reasonable jury to conclude Defendants were on
notice of the risk to Plaintiff and failed to address it.
d.

Additional Defense Arguments

Although Defendants’ motion is premised on their acceptance of Plaintiff’s
version of the facts as true, they also suggest Plaintiff’s version of the facts should not
be credited: they note that, having no conceivable reason to see Plaintiff harmed, they
would have noted his concerns on the Form 128G if any had been raised. The absence
of same on the form is evidence no such fears were raised. There is logic to that
argument. But it is inconsistent with Plaintiff’s claim that he told Defendants of his
enemy concerns. The resulting factual dispute precludes summary judgment.

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Defendants also argue that their telling Siordia Plaintiff had enemy concerns did
not amount to telling Siordia Plaintiff had “snitched.” Plaintiff believes this disclosure
elevated Plaintiff’s risk of harm at Siordia’s hands.
credited by the jury.

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Defendants further argue, in the alternative, that even assuming Plaintiff did
make his enemy concerns known at the January 19, 2011 hearing, Defendants
responded reasonably. Farmer, 511 U.S. at 844-45 (“A prison official’s duty under the
Eighth Amendment is to ensure ‘reasonable safety’) (quoting Helling v. McKinney, 509
U.S. 25, 33 (1993)). They reviewed Plaintiff’s file and found no evidence of enemy
concerns after 2008, and Siordia himself confirmed that Plaintiff’s concerns were
unwarranted. Finding no independent corroboration of Plaintiff’s fears at the time of
Plaintiff’s hearing, Defendants reasonably housed Plaintiff in Facility A with Siordia.

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However, according to Plaintiff, Defendants’ statements and actions during the
January 19, 2011 hearing—checking his file, inquiring of Siordia, and proposing the
SHU as alternative housing—confirm they knew of and disregarded Plaintiff’s fears.
Furthermore, according to Plaintiff, Defendants told him that he needed to “be a man”
since he was “out of places to go.”

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Either interpretation could be

Defendants acknowledge that when an inmate raises enemy concerns, he is to
be placed in the SHU or kept in his old housing unit until the issue is investigated and
resolved, but not moved to a new housing location. A reasonable jury could conclude
that Defendants acted with deliberate indifference when they moved Plaintiff to Facility
A immediately after his classification hearing rather than to the SHU or Plaintiff’s old
unit.
Defendants maintain that all inmate claims of enemy concerns must be
independently verified to ensure the inmate did not fabricate the claim to obtain a
particular housing assignment. There is no evidence to indicate Defendants attempted
to independently verify Plaintiff’s enemy concerns before he was moved, other than

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through the conversation with inmate Siordia.
Based on this evidence, a jury could find that Defendants acted with deliberate
indifference when they housed Plaintiff in the same unit as his enemy. Defendants are
therefore not entitled to judgment as a matter of law.
2.

Causation
a.

Legal Standard

Under section 1983, Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662,
676-77 (2009); Simmons v. Navajo Cty., Ariz, 609 F.3d 1011, 1020-21 (9th Cir. 2010);
Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297
F.3d 930, 934 (9th Cir. 2002).

Plaintiff may not attribute liability to a group of

defendants, but must “set forth specific facts as to each individual defendant’s”
deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)
To show causation, Plaintiff must show each individual Defendant committed “an
affirmative act, participate[d] in another's affirmative acts, or omit[ted] to perform an act
which he is legally required to do,” thus causing the deprivation of Plaintiff’s rights.
Leer, 844 F.2d at 633 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)
(internal quotations omitted)). “The inquiry into causation must be individualized and
focus on the duties and responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional deprivation.” Id. (citing Rizzo v.
Goode, 423 U.S. 362, 370–71, 375–77 (1976); Berg v. Kincheloe, 794 F.2d 457, 460
(9th Cir. 1986); Williams v. Bennett, 689 F.2d 1370, 1381 (11th Cir.1982) cert. denied,
464 U.S. 932 (1983)).
b.

Analysis

Defendants argue Plaintiff has failed to attribute acts or omissions in violation of
Plaintiff’s rights to each Defendant. They note that Plaintiff only describes Walker’s
actions during the hearing, and those actions did not rise to the level of a constitutional

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violation. Plaintiff does not know what the remaining four defendants said or did that led
to the deprivation of his rights.

CDCR regulations require only three individuals

participate in UCC classification hearings. Since only Walker and Fellows are listed as
having performed roles at the hearing, Plaintiff cannot show that Davis, Prokop, and
Spralding were even present, let alone that they participated in violating Plaintiff’s rights.
The Court rejects Defendants’ position. First, there are sufficient facts showing
Walker personally participated in the alleged deprivations.

As Chairperson, Walker

presided over the January 19, 2011 hearing that led to Plaintiff’s placement on Facility
A. Plaintiff has affirmatively identified Walker as a participant. According to Plaintiff,
Walker responded directly to Plaintiff’s enemy concerns by telling him he was “out of
places to go” and needed to “man up.” Walker’s having Siordia brought to the holding
cell to discuss Plaintiff’s enemy concerns reflect his knowledge of those concerns.
Plaintiff acknowledges not being able to specify, solely on the basis of the names
of the other individual Defendants, what each said and did during the hearing. He
knows what the culpable Defendants look like, but needs to see them to identify who did
what. His incarceration presents him from seeing them before trial.
Fellows does not recall the hearing.

Undisputed evidence shows he was

present—he signed off on the Form 128G as the “recorder” Similarly, although Plaintiff
cannot distinguish between Defendants Davis, Prokop, and Spralding, their names
appear on the paperwork documenting the hearing.

None have any memory of

participating, but none can rule out participation,
However, the undisputed evidence shows Walker did not make the decision to
house Plaintiff on Facility A by himself--a quorum of three was necessary. Plaintiff posits
that when, at trail, he has the opportunity to see the faces of the individual Defendants,
he will be able to testify definitively as to what each said and did during the hearing.
The Court finds that if such testimony were presented against a particular
Defendant or Defendants and accepted as true and persuasive by the trier of fact, a

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reasonable juror could find it, along with evidence that defendant was present at the
hearing, a sufficient basis to impose liability, if any, on that Defendant. As such, it
cannot be said that

Defendants have shown an “absence of evidence” to prove

Plaintiff’s case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (Where
the non-moving party will bear the burden of proof at trial, “the moving party need only
prove that there is an absence of evidence to support the non-moving party’s case.”)
Whether, and to what extent, these latter four Defendants participated in the deprivation
of Plaintiff’s rights remains an open question appropriately left to a jury.
3. Qualified Immunity
a.

Legal Standard

“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223,
231 (2009) (additional citation omitted)). “Qualified immunity shields an officer from
liability even if his or her action resulted from a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Id. (citation and quotation marks
omitted). “The purpose of qualified immunity is to strike a balance between the
competing need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Id. (citation and quotation marks omitted).
In determining whether an official is entitled to qualified immunity, courts employ
a two-pronged inquiry. The Court has discretion to address the two-step inquiry in the
order it deems most suitable under the circumstances. Pearson, 555 U.S. at 236
(overruling holding in Saucier v. Katz, 533 U.S. 194 (2001), that the two-step inquiry
must be conducted in that order, and the second step is reached only if the court finds a
constitutional violation.) The first prong asks whether the state actor violated the

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plaintiff's constitutional right; if the answer to that question is “yes,” courts must then
determine whether the constitutional right was “clearly established in light of the specific
context of the case” at the time of the events in question. Id. (citing Robinson v. York,
566 F.3d 817, 821 (9th Cir. 2009) and Saucier v. Katz, 533 U.S. 194, 201 (2001)).
“For the second step in the qualified immunity analysis—whether the
constitutional right was clearly established at the time of the conduct—the critical
question is whether the contours of the right were ‘sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that right.’ ”
Mattos, 661 F.3d at 442 (quoting Ashcroft v. al–Kidd, 563 U.S. 731 (2011) (some
internal marks omitted)). “The plaintiff bears the burden to show that the contours of the
right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109
(9th Cir. 2011). “[W]hether the law was clearly established must be undertaken in light
of the specific context of the case, not as a broad general proposition” Estate of Ford v.
Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002) (citation and internal marks
omitted). In making this determination, courts consider the state of the law at the time of
the alleged violation and the information possessed by the official to determine whether
a reasonable official in a particular factual situation should have been on notice that his
or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (the “salient question” to the qualified immunity
analysis is whether the state of the law at the time gave “fair warning” to the officials that
their conduct was unconstitutional). “[W]here there is no case directly on point, ‘existing
precedent must have placed the statutory or constitutional question beyond debate.’”
C.B. v. City of Sonora, 769 F.3d 1005, 1026 (9th Cir. 2014) (citing al–Kidd, 131 S. Ct. at
2083). An official's subjective beliefs are irrelevant. Inouye, 504 F.3d at 712.
b.

Analysis

Defendants argue no reasonable prison official would have believed he was
acting unlawfully by housing Plaintiff alongside Siordia. Saucier, 533 U.S. at 201. They

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argue that even assuming Defendants’ actions violated a constitutional right, that right
was not clearly established.
The Court has found there are sufficient facts on the record for a reasonable jury
to conclude that a constitutional violation occurred. Defendants focus their analysis on
the second prong of the inquiry: whether the right alleged to have been violated was
clearly established. Saucier, 533 U.S. at 201. Defendants point out that no authorities
have “fleshed out” the point at which “a risk of inmate assault because sufficiently
substantial for Eighth Amendment purposes.” Estate of Ford, 301 F.3d at 1049.
In Estate of Ford, the Ninth Circuit granted summary judgment to defendants on
qualified immunity grounds in a case in which the decedent was killed by his cellmate.
301 F.3d at 1049. The decedents family alleged prison officials had violated the Eighth
Amendment by housing decedent with an inmate known to be violent. The Court found
that the conduct alleged, if proven, would constitute a violation of the Eighth
Amendment. However, it held that a reasonable officer would not have known that his
conduct in housing the decedent with his attacker was unlawful. While prison officials
were aware of the attacker’s violent past, evidence showed the decedent had requested
to be housed with his attacker, had been housed with him previously without incident,
and had no history of enemy, gang, or “victim-predator” concerns. The Court held that a
prison official is entitled to qualified immunity on a failure to protect claim when,
“understanding that he cannot recklessly disregard a substantial risk of serious harm,
[he] could know all of the facts yet mistakenly, but reasonably, perceive that the
exposure in any given situation was not that high.” Id. at 1050 (citing Saucier, 533 U.S.
at 205). The Court emphasized that while Farmer had clearly established a right to be
free from a risk of inmate assault, no court had yet fleshed out at what point the risk
became “sufficiently substantial for Eighth Amendment purposes,” and thus the
defendants were not on notice as to when the risk of double-celling the decedent with
his attacker elevated from “a risk of some harm to a substantial risk of serious harm.” Id.

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It is important to note that the inquiry in Estate of Ford relied heavily on the facts
the defendants there were presented with. Here, viewing the facts in the light most
favorable to Plaintiff, a reasonable prison official would have been aware that Plaintiff
faced an objectively serious risk of substantial harm at the hands of Siordia and his
gang.

Defendants offer no justification, aside from Siordia’s potentially self-serving

statements, for concluding that the renewed threat of harm at Siordia behest was any
less than the threat in 2005 when Siordia was placed on Plaintiff’s enemy list.
Defendants acknowledge that pending verification of enemy concerns, an inmate is to
be placed in the SHU or kept in his old housing unit, but not moved to a new housing
location. This reflects prison awareness of the substantial risk which may arise when
inmates raise enemy concerns.
Defendants also attempt to analogize the case at bar to Toscano v. Lewis, Case
No. C-12-5893 EMC, 2015 WL 4940832 (N.D. Cal. Aug. 19, 2015). There, the Court
found the defendants were entitled to qualified immunity after housing the plaintiff
alongside a gang-affiliated inmate who eventually attacked the plaintiff. The plaintiff had
expressed fears of retaliation from his former gang associates in the general population
after he was validated as “inactive.” Prison officials responded by moving the plaintiff
into administrative segregation for several months while they investigated the plaintiff’s
claims. Id. at *16. After the investigation was completed, Plaintiff was returned to the
general population and housed with his attacker. Id. The defendants in Toscano were
presented with mixed information regarding the risk faced by the plaintiff, including old
paperwork documenting the plaintiff’s enemy concerns. The Court relied on Estate of
Ford to conclude that, based on the information available to the defendants at the time,
a reasonable official would not have believed housing the plaintiff alongside his attacker
would expose the plaintiff to a substantial risk of harm. Id. at *22.
Defendants argue that here, as in Toscano, prison officials were presented with
conflicting information regarding risk to Plaintiff. However, in Toscano, the discrepancies

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the officials faced were substantially more pronounced than here: the plaintiff in
Toscano had allegedly stated, in the middle of the investigation, that his “safety
concerns [were] all made up and not true,” before once again reiterating his safety
concerns, and there was evidence that the plaintiff had fabricated his concerns in order
to secure a particular housing situation. Id. at *9. Furthermore, plaintiff had proven to
be uncooperative during the investigation of his concerns, further casting doubt on their
veracity.

Id. at *8.

In granting summary judgment, the Court relied on the prison

officials’ reasoned and thorough decision-making to conclude they acted reasonably.
Toscano, 2015 WL 4940832 at *22.
Again, the Court’s inquiry in Toscano was very fact specific. Here, there is no
evidence that Plaintiff’s enemy concerns were fabricated or unjustified.

As to the

“mixed” information faced by Defendants, Plaintiff’s removal of Siordia from his enemy
list in 2008 does not negate the potential for renewed enemy concerns in 2011. Indeed,
one could conclude that Defendants acted unreasonably by disregarding Plaintiff’s
present-day concerns, especially where triggered by new threats to Plaintiff, and giving
deference to a three year old decision.
The fact-specific nature of this inquiry was recently reiterated by the Ninth Circuit
in Castro v. Cty. of Los Angeles, No. 12-56829 (9th Cir. Aug. 15, 2016) (en banc) (slip
op.). There, the court found that jail officials were not entitled to qualified immunity after
failing to protect Plaintiff from an attack by his intoxicated cellmate in the county jail. In
rejecting the Defendants’ argument that the right at issue was not “clearly established,”
the Court noted that the contours of the right at issue were simply “the right to be free
from violence at the hands of other inmates,” and “required only that the individual
defendants take reasonable measures to mitigate the substantial risk [of harm].” Id.
Without evaluating what would constitute “reasonable measures,” the Court found the
facts on the record in that case sufficient to support a finding that Defendants knew of a
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Here, based on the facts on the record, the Court finds a reasonable prison
official would have known not to house Plaintiff with Siordia immediately after learning of
Plaintiff’s concerns where there was a documented past history between the inmates,
where Plaintiff steadfastly refused to be housed with Siordia, and where there were
procedures and mechanisms available to safely segregate Plaintiff while his concerns
were being investigated. Based on the foregoing, Defendants are therefore not entitled
to qualified immunity.

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V.

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Based on the facts, a reasonable jury could conclude Defendants were
deliberately indifferent to a substantial risk of harm to Plaintiff. The Court finds
Defendants are not entitled to judgment as a matter of law. Based on these findings,
there is no need, at this juncture, to stay the proceedings in order to reopen discovery.
Accordingly, IT IS HEREBY RECOMMENDED that:

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1.

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Plaintiff’s motion to stay the proceedings pursuant to Federal Rule of Civil
Procedure 56(d) (ECF No. 108) be DENIED.

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Defendants’ motion for summary judgment (ECF No. 99) be DENIED, and

2.

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Conclusion

These Findings and Recommendations are submitted to the United States
District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
Within

fourteen

(14)

days

after

being

served

with

these

Findings

and

Recommendations, any party may file written objections with the Court and serve a
copy on all parties. Such a document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Any reply to the objections shall be served
and filed within fourteen (14) days after service of the objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3
4 IT IS SO ORDERED.
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6

Dated:

August 16, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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